Early intervention counseling
Tatum v Horn, 37 AD3d 285
Wayne Tatum appealed his dismissal from his position as a New York City correction office after being found guilty of a number of allegations of misconduct.
The Appellate Division ruled that the New York City Department of Correction presented ample evidence at Tatum’s disciplinary hearing proving allegations that he had violated numerous departmental rules.
Tatum had been charged with being AWOL on multiple occasions, failing to sign-out of the correctional facility to which he was assigned, failing to contact his superiors when required, and insubordination by failing to obey a supervisor’s order.
In response to Tatum’s argument that the Department had not sent him to an “early intervention counseling program”, the court said that “Correction was not obliged to send him to its early intervention counseling program, a program that is discretionary, not mandatory.” In addition, the Appellate Division commented that “the value of such counseling would have been questionable in light of [Tatum’s] long disciplinary history."
In a similar case, Carroll v Perkle, 296 AD2d 755, Leave to appeal denied 98 NY2d 764, one of the issues considered by the court concerned “intervention counseling programs.”
The Appellate Division ruled that Carroll had been denied administrative due process because the Education Law Section 3020-a Hearing Panel failed to consider “mitigating circumstances” in determining the penalty.
The Appellate Division said that the Hearing Panel failed to honor Carroll’s request that the Board of Education’s “lack of effort to correct his behavior,” be considered by the panel in determining the appropriate penalty to be imposed. §3020-a(4) of the Education Law provides that “At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan.”
The decision is posted on the Internet at:
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