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January 24, 2011

Right to counsel in a disciplinary action

Right to counsel in a disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307

The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Edwin Elmore, alleging that Elmore had engaged in inappropriate conduct toward a student. Found guilty following a disciplinary hearing held pursuant to Section 3020-a of the Education Law, the district terminated Elmore.

Elmore appealed, contending that he had been unfairly denied his right to counsel when the Hearing Officer ruled that he could not discuss his testimony with his attorney during any adjournments in his cross-examination by the school district’s attorney. According to the decision, the five days of Elmore’s cross-examination extended over a period of 10 weeks. In other words, the hearing officer barred Elmore from discussing his testimony with his attorney for a ten-week period.

A State Supreme Court judge vacated the determination and the penalty imposed. The Appellate Division sustained the lower court’s decision. The Appellate Division pointed out that Section 3020-a(3)(c)(i) provides that a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.

However, because there were no cases discussing the precise issue herein, namely, to what extent a Hearing Officer may circumscribe a teacher’s contact with his attorney between adjourned dates of hearings, cited in the briefs submitted by the parties, the Appellate Division applied the rationale followed in criminal prosecutions involving similar situations -- barring the client from conferring with his or her attorney.

Commenting that teacher disciplinary proceedings are not criminal actions, the court said it was mindful that “a tenured teacher has a protected property interest in his [or her] position which raises due process considerations when a teacher is faced with termination of his employment, presumably deeming the loss of employment the economic equivalent of incarceration.”

As New York courts have disapproved forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division, citing Goldfinger v Lisker, 68 NY2d 225, decided that such a restriction in an administrative disciplinary proceeding was inappropriate in view of the due process considerations involved when a tenured employee is threatened with termination of his or her employment -- particularly in Elmore-type situation, where the time period involved was 10 weeks. The Appellate Division directed the district to hold a new hearing.

The court’s rationale would probably be applied in disciplinary actions taken against an individual pursuant to Section 75 of the Civil Service Law.

Public Personnel Law E-books

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A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

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