July 27, 2011

Anatomy of a hearing officer's disciplinary findings and recommendation

Anatomy of a hearing officer's disciplinary findings and recommendation
Averill Park CSD v Craig Landin, Decision of Hearing Officer Howard A. Rubenstein, Esq.

The analysis of the record by the hearing officer in considering Section 75 disciplinary charges filed by the Averill Park Central School District against school custodian Craig Landin provides examples of several important issues that a hearing officer may be required to consider and rule upon in the course of formulating his or her findings and recommendations.

In the course of formulating his findings and recommendations, Section 75 Hearing Officer Howard A. Rubenstein sets out his reasoning in (1) determining the credibility of witnesses and (2) holding that certain of the charges filed against Landin did not constituted “double jeopardy.”

Landin was served with a number of charges and specifications alleging misconduct and incompetence. One charge alleged that Landin falsified his time records by reported he had worked overtime when he “in fact ... did not work at least part of those hours” claimed. Other charges included allegations that Landin failed to perform, or assign a subordinate to perform, certain duties when he was directed to do so and neglected to open the building as scheduled on Election Day, November 7, 2000.

As to the charge alleging that Landin falsified his time records, on Tuesday, June 13, 2001, Landin completed and signed the time sheet indicating that he had worked overtime from 9:00 a.m. to 4:30 p.m. on Saturday June 9, 2001.

There was a problem with this statement, however. The testimony of Landin's supervisor, Henry Altenweg, was that he had observed Landin working “in his yard” as he drove by Landin's home about 10 a.m. on June 9 on his way out of town. Further, Dr. Wayne Johnston, the school principal, testified that he entered the building at approximately 9:15 a.m. on June 9, 2001 and had to turn off the alarm system when he arrived. Dr. Johnston explained that if anyone had been present in the building when he arrived, the alarm either would have been set off by the earlier visitor or would have had to have been turned off by the earlier visitor.*

Landin then explained that he did not work on June 9, attributing his claim to have worked on that date to “forgetfulness,” and made the affirmative defense that he had “accepted the offered overtime and completed the assignment on Sunday, June 10, 2001 between the approximate hours of 9 a.m. and 5 p.m.”

The problem with this defense was that Altenweg also testified that he drove by Landin's home about 1:00 p.m. on Sunday, June 10 while returning from out of town and again observed him working in his yard.

Essentially Landin testified that he worked either on the 9th or the 10th, or maybe on both days, but he just could not remember when he worked. However, when asked “[d]o you remember when you got to work?, he responded “[a]t 8:55 a.m.” because “ [w]hen I pulled up to the building -- my clock is right in my dashboard, smack dab in the middle. And just before I shut it off, I looked at the time to make sure I wasn't late, and it said 8:55.”

Sarah O'Hearn and Phyllis Kapelewski, witnesses called to testify by Landin, could not recall seeing him at work on either June 9 or June 10 or whether the tasks they asked to perform were actually done on that Saturday or that Sunday.

As to the reaction of the hearing officer to Landin's testimony concerning when he reported for work, Rubenstein commented that Landin just tells a different story every time he is asked when he actually worked. “Landin's explanation that his loss of memory as to which day he performed the overtime was due to illness apparently was the result of a case of date specific amnesia, but not time specific amnesia, since although he could clearly recall that he had reported for work at 8:55 a.m. and left work at 4:30 p.m, he could not recall on which day he had worked ... I reject Landin's testimony as to when and how many hours he may have worked overtime on the June 9th weekend as entirely unworthy of belief.”

In contrast, Rubenstein said that the testimony of Altenweg that he saw Landin at his home on June 9th at approximately 10:00 a.m. and on June 10th at approximately 1:00 p.m. was clear and convincing and stands essentially unchallenged in the record. He noted that Landin never specifically denied that he was at his home at 10 a.m. on Saturday June 9th and at 1 p.m. on Sunday June 10th.

In addition, said Rubenstein, Dr. Johnston's testimony that when he arrived at School on Saturday June 10th, the alarm system was still on and therefore Landin could not have been there at that time also stands unchallenged.

The bottom line: Rubenstein concluded that “Landin lied when he reported the date and time he worked overtime to Altenweg and is thus guilty of charge 1....”

Charge 2 consisted of five specific instances in which it was alleged that Landin failed to adequately clean, or to ensure that one of his subordinates adequately cleaned, various areas within the school building. The hearing officer found Landin guilty of all specifications.

In his post hearing brief, Landin argued that his failure to clean areas identified in the charge do not justify disciplining him given the fact that he had a significant amount of extra work to perform and, in any event, “is such a minor matter that it does not warrant the imposition of any penalty.” The hearing officer said that this argument goes to the nature of the penalty to be imposed rather than whether Landin was guilty as charged.

Landin also argued that he received a memorandum concerning his failure to remove certain materials from the building on January 3, 2001, and that such a memorandum constituted discipline and that he could not be charged with the same misconduct twice.

Rubenstein rejected this argument, noting that in this instance the counseling memo constituted proper supervisory conduct rather than an impermissible disciplinary action. In the words of the hearing officer:

As the Court of Appeals indicated in Holt v Webutick Central School District, 52 NY2d 625, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

In other words, comments critical of employee performance do not, without more, constitute disciplinary action. Typically the “more” is the imposition of some form of penalty. Coupling a “counseling memorandum” with some form of an adverse personnel action would be viewed as a subterfuge for initiating required disciplinary action.

In some instances it may be difficult to determine the location of that thin line that separates lawful “constructive criticism” of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature. Here, said Rubenstein, that thin line is easy to distinguish.

Why? Because “[t]he memo was clearly a lawful means of instructing Landin concerning unacceptable performance and the actions that he should take to improve his work. No disciplinary characteristics attach to the memo, nor does it contain any disciplinary action or threat or promise of detrimental action.”

Rubenstein also pointed out that in Patterson v Smith, 53 NY2d 98, the Court of Appeals ruled that including charges concerning an employee's performance that were previously addressed in a counseling memorandum does not constitute double jeopardy. The court commented that while a proper counseling memoranda may contain a warning and an admonition to comply with the expectations of the employer, it is not a form of punishment in and of itself.

As to Charge 3, Landin's alleged failure to open the building on Election Day, a task that he had done on earlier occasions, the hearing officer decided that Landin's failure to open the building or to ask if he should open the building “is inexcusable and constitutes misconduct or incompetence.”

In view of his findings that Landin was guilty of all charges and specifications, Rubenstein recommended that Landin be dismissed from his position. The school board adopted the hearing officer's findings and recommendation and dismissed Landin from his position.

Another procedural matter: Rubenstein placed the appointing authority's letter designating him to serve as the hearing officer in the record. Why did he elect to do this? To demonstrate his authority to conduct the hearing. The courts have ruled that the failure to designate the disciplinary hearing officer in writing is a fatal procedural defect requiring any resulting disciplinary action to be vacated.

* Dr. Johnston also testified that he reset the alarm when he left at approximately 10:00 a.m. The alarm “did not beep,” indicating that no one was present in the building when the alarm was reactivated.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor 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.
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