TO SEARCH this database type in a key word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

April 28, 2011

Procedure for requesting a disciplinary hearing

Procedure for requesting a disciplinary hearing
Gagnon v Wappingers CSD, 268 AD2d 472

Section 3020-a.2(c) of the Education Law requires the individual against whom disciplinary charges have been filed to advise the district’s clerk or secretary whether or not he or she wishes to provided with a hearing. Such a request must be filed within 10 days of the individual’s receiving the statement of the charges. If the individual fails to notify the clerk or secretary that he or she wishes to have a hearing within this ten-day period, and this defect is “unexcused,” the individual is deemed to have waived his or her right to a hearing.

This was the situation facing Conrad Gagnon. Gagnon had been served with disciplinary charges pursuant to Section 3020-a of the Education Law. He, however, failed to advise the district’s clerk or secretary that he wanted a hearing within the statutory 10-day period allowed for this purpose. The district issued its disciplinary determination without holding a hearing.

Gagnon filed a petition pursuant to Article 78 of the Civil Practice Law and Rules contending that “his failure to make a timely demand for a hearing was excusable” and therefore the district’s refusal to accept his untimely request for a Section 3020-a disciplinary hearing was arbitrary and capricious and an abuse of discretion. A Supreme Court judge was not persuaded and dismissed Gagnon’s petition.

The Appellate Division affirmed the lower court’s ruling, noting that Gagnon “failed to proffer any evidence that he in fact requested permission to file a late demand for a hearing, or to rebut the sworn assertions proffered by the Board that no such request was ever made.” In other words, not only did Gagnon concede that he fail to file a timely request for a disciplinary hearing, he was unable to demonstrate that he had made any request for such a hearing whatsoever.

The decision clearly demonstrates the importance of both the employer and the employee, respectively, establishing what some refer to as a “paper trail” demonstrating that all procedural elements in such cases were complied with.

In contrast to Section 3020-a, Section 75 of the Civil Service Law mandates that a hearing to consider disciplinary charges filed against an individual in the classified service be scheduled and held if discipline is to be imposed on an employee subject to its provisions.

Going forward with the Section 75 disciplinary hearing is not contingent on the employee’s requesting such a proceeding. Although Section 75.2 requires that the employee be allowed not less than eight days to file an answer to the charges and specifications, there is no statutory requirement that he or she do so.*

The appointing authority must hold a Section 75 disciplinary hearing – and prove the charges and specifications filed against the employee -- even if the individual does not submit an answer the charges.

Further, case law indicates that the hearing must go forward, even if the employee fails to appear at, or participate in, the proceeding if the employer wishes to impose discipline on the individual.

* Section 75.2, in pertinent part, provides “A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefore, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.”

===================
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
 =======================

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html

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. Click on http://booklocker.com/books/7401.html for more information.

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on http://booklocker.com/books/3916.html