Right to counsel during administrative disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307, motion for leave to appeal denied, 99 NY2d 509
Employees against whom disciplinary charges have been filed typically have the right to (1) testify on their own behalf and (2) the right to representation by an attorney. Such rights are standard in the disciplinary provisions of collective bargaining contracts as well as disciplinary statutes such as Section 75 of the Civil Service Law and Section 3020-a of the Education Law.
The Elmore decision illustrates that an employer who seeks to limit an employee’s access to counsel during a disciplinary proceeding can be viewed by the courts as committing a fatal error.
The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Elmore, pursuant to Section 3020-a. Elmore’s personal testimony took place on various dates over a period of ten weeks.
At the district’s request, the hearing officer ordered Elmore not to “confer with his attorney about his testimony over the breaks in the hearing.” Nor could Elmore “review transcripts of his testimony during breaks in his testimony.”
Found guilty of the charges, Elmore asked the Supreme Court, Nassau County, to vacate the award pursuant to Section 7511 of the Civil Practice Law and Rules [CPLR].*
Elmore contended the hearing officer’s order constituted “misconduct by the arbitrator” within the meaning of Article 75 of the CPLR because the order effectively denied him the right to counsel.
The district cited a ruling in a criminal matter where the Court of Appeals upheld a lower court’s “restriction of conferencing between a defendant and his attorney during a recess in the course of a criminal trial” [People v Enrique, 80 NY2d 869] in support of its position. But Justice Geoffrey J. O’Connell was not persuaded Enrique was analogous because that ruling pertained only to a single, brief recess period.
The court said that a closer approximation of Elmore’s situation was addressed in People v Carracedos, 89 NY2d 1059. In Carracedos the Court of Appeals ruled that the preclusion of communications between counsel and client during a single overnight recess was a violation of the accused’s right to counsel. Elmore had demonstrated that he was prevented from communicating with his attorney for “weeks at a time” in the middle of his testimony.
Holding that Elmore’s rights were prejudiced by the hearing officer’s order barring him from speaking with his attorney, Justice O’Connell vacated the arbitration award in its entirety. The Appellate Division affirmed the ruling.
[For decisions addressing Elmore’s being placed on leave without pay in concert with this disciplinary action, see Elmore v. Mills, 296 AD2d 704 and Elmore v. Plainview Old Bethpage Central School Dist., 299 AD2d 545].
* N.B. Section 3020-a, as amended, provides that appeals from a Section 3020-a hearing officer’s determination must be filed within ten days pursuant to Section 7511, CPLR.
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com