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.
Artificial Intelligence [A.I.] is not used, in whole or in part, in the preparation of summaries of judicial and quasi-judicial decisions posted on the Internet by NYPPL.
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these 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.
New York Public Personnel Law Blog Editor 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 members of the NYPPL staff 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.
Copyright 2009-2023 - Public Employment Law Press. Email: firstname.lastname@example.org.