December 14, 2010

Dismissal of charges in the course of a Section 75 disciplinary hearing

Dismissal of charges in the course of a Section 75 disciplinary hearing
Source: Reader's inquiry

From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:

"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"

NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*

Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.

The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.

As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].

As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.

* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.

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