New York Public Personnel Law: Dismissal for excessive absence found an appropriate disciplinary penalty

February 11, 2011

Dismissal for excessive absence found an appropriate disciplinary penalty

Dismissal for excessive absence found an appropriate disciplinary penalty
McKinnon v North Bellmore UFSD, 273 AD2d 240

According the Appellate Division, Second Department, dismissing an employee who is guilty of excessive absence is consistent with the Pell standard (Pell v Board of Education, 34 NY2d 222).

The North Bellmore Union Free School district dismissed Hugh McKinnon, a teacher, after he had been found guilty of charges of (1) failing to comply with the district has established call-in procedure to report his absences and (2) incompetence based on his excessive absences.

Finding that there was substantial evidence in the record to support the findings that McKinnon was guilty of the charges filed against him, the court said that it did not find that imposing a penalty of dismissal so disproportionate to McKinnon’s misconduct as to be shocking to one’s sense of fairness and dismissed his appeal.

Significantly, the court held that the charge of incompetence based on McKinnon’s excessive absences was supported by substantial evidence in the record notwithstanding the fact that the validity of the reasons for his absences was not contested by the district.

Apparently the court decided that the district’s failure to challenge the reasons tendered by McKinnon to excuse his excessive absences did not have any adverse impact on the probative value of such evidence for the purposes of finding him guilty of such charges nor did this form any basis for mitigating the penalty imposed by the district.

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CAUTION

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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.