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March 30, 2011

Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error

Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error
Matter of Social Servs. Employees Union, Local 371 v City of New York, Dept. of Juvenile Justice, 2011 NY Slip Op 02455, Appellate Division, First Department

Judge Alice Schlesinger confirmed an arbitration award reinstating Bowana Robinson to his position as an institutional aide at the City of New York's Department of Juvenile Justice. The award also provided Robinson with back pay and seniority.

The Appellate Division vacated the lower court’s ruling and remanded the matter to the arbitrator “for a determination of an appropriate penalty.” The court said that the arbitrator had failed to “give preclusive effect” to the fact that Robinson had plead guilty plea of petit larceny, which “was irrational” and the arbitrator’s award “places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.”

The ruling in Kelly v. Levin, 440 NYS2d 424 involved a similar situation - an administrative tribunal's failure to give preclusive effect to a relevant criminal conviction by a court. Kelly involved a school business administrator charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law §3020-a disciplinary panel found the Kelly guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being served with the §3020-a disciplinary charges (see People v Kelly, 72 AD2d 670).

The court ruled that it was reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02455.htm .

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