What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges

What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges
Response to an inquiry from a NYPPL reader

A NYPPL reader asks: If an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications, may the appointing authority impose the proposed penalty without holding a disciplinary hearing?

Although it appears that this specific question has yet to be litigated, a close reading of Section 75 suggests such an action by an employer would not survive judicial scrutiny.

Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.

In contrast, Section 75 is silent with respect to requiring the employee submit any answer to the charges.

This suggests that the individual may remain mute without jeopardizing his or her Section 75 rights.

Indeed, should the accused individual attend the disciplinary hearing and remain mute and present no defense, the employer would still be required to "prove" the alleged misconduct or incompetency.

Clearly, Section 75 provides that the burden of proving incompetency or misconduct ... (is) upon the person alleging the same. In other words, the failure of an employee to offer a defense does not absolve the employer of the duty to prove incompetence or misconduct before imposing disciplinary sanctions.

Indeed, it is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled.

Given that the courts require employers to conduct a disciplinary hearing being conducted pursuant to Civil Service Law Section 75 even if an employee fails to appear at the proceeding, it seems unlikely that the courts would approve imposing a penalty on an individual because he or she failed to answer the disciplinary charges filed by the appointing authority.

Moreover, under Section 75 the employee need not ask for a hearing; it is to be provided as a matter of right.

In contrast, Section 3020-a of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires that the individual affirmatively act and request a disciplinary hearing.

Under Section 3020-a, not only is the accused individual required to tell to the employer whether or not he or she wishes to have a disciplinary hearing scheduled, "the unexcused failure of the employee to notify the [district's] clerk or secretary of his or her desire for a hearing ... shall be deemed a waiver of the right to a hearing ...."

Section 3020-a also provides that in the event the teacher or school administrator does not ask for a Section 3020-a hearing, by design or otherwise, the school board is to determine the case and fix the penalty in accordance with Section 3020-a.4 of the Education Law.

The Section 3020-a model is followed in most alternative disciplinary procedures negotiated pursuant to the Taylor Law. If the employee does not file a timely disciplinary grievance, the appointing authority usually is authorized to impose the penalty proposed in the notice of discipline served on the individual without further action on its part and without referring the issue to arbitration.

What would be the result should the charging party not participate in an administrative proceeding? The decision in Armata and United Federation of Teachers, 30 PERB 4713, is instructive in this regard.

Rebeca Armata elected not to attend the scheduled PERB hearing. The PERB hearing officer dismissed her complaint on the ground that she had failed to prosecute it.

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