A settlement of a disciplinary action should be memorialize in writing

A settlement of a disciplinary action should be memorialize in writing
Winkler v Kingston Housing Auth., 259 AD2d 819

A public employee who faces disciplinary charges may enter into a settlement agreement that disposes the charges, so long as the waiver is knowingly and intelligently undertaken and serves as the consideration for the curtailment of pending disciplinary proceedings [see Whitehead v State of New York Department of Mental Hygiene, 71 AD2d 653].

The Winkler case teaches the lesson that parties to a settlement can avoid considerable grief if the terms of the negotiated settlement are contemporaneously placed in the record or, in the alternative, signed by all of the necessary parties upon conclusion of settlement negotiations.

Barbara Winkler, a Kingston Housing Authority account clerk/typist, was suspended without pay pending a disciplinary hearing for a period not to exceed 30 days pursuant to Civil Service Law Section 75.3 effective May 12, 1995. She removed her belongings from her desk on May 15, 1995 and demanded a Section 75 hearing. A hearing was scheduled for June 8, 1995.

In the course of the hearing the parties asked for an adjournment to negotiate a settlement in an effort to resolve the disciplinary action. Ultimately, the parties reached an oral agreement resolving the charges filed against Winkler and the Section 75 hearing was “permanently terminated.” Despite the presence of a court reporter, the terms of the settlement were not placed on the record. Subsequent efforts to memorialize the agreement in a written signed document were unsuccessful. Winkler never returned to work, nor did she submit a letter of resignation.

Winkler sued, contending that the matter had not been resolved, that she was still employed by the Authority and that she should have restored to the payroll upon the expiration of the 30-day period of suspension without pay authorized by Civil Service Law Section 75.3.

A state Supreme Court judge dismissed Winker’s petition. The court ruled that Winkler’s employment ended May 15, 1995, notwithstanding the fact that she had not submitted a written resignation.

The court concluded that testimony at the trial indicated that “an agreement was reached to which [Winkler] consented whereby the suspension would be vacated, no finding of guilt on the charges would be made, [Winkler] would receive six months of salary and health insurance benefits for one year, and that [the Authority] would not oppose plaintiff’s efforts to be placed on the Commission’s preferred list, if eligible, and to receive unemployment compensation.”

The Appellate Division affirmed the lower court’s ruling. It said that Winkler had been accorded all the protections of Section 75 to which she was entitled, noting that she had been given a statement of the charges and a hearing was held at which she was represented by counsel. The Appellate Division also said that “after detailed negotiations, the parties entered into a verbal agreement in full satisfaction of all disciplinary charges.”

“[W]hile it would have been preferable for the parties to have recorded the agreement in some fashion,” the Appellate Division said, “an agreement on the record or in writing is not required by Civil Service Law Sections 75, case law or the Statute of Frauds....”

The court said that Winkler’s subsequent refusal to tender the agreed-upon letter of resignation does not entitle her to renegotiate the oral settlement agreement.

The Appellate Division, however, did not appear to be pleased with the handling of the “settlement.” It commented that “clearly, the procedures employed in entering into this [oral] agreement, which did not include a simultaneous recording of the terms, should not serve as a model to guide future settlement negotiations. Indeed, the failure to utilize the available court reporter to make an official record was inexplicable.”
NYPPL