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Monday, August 22, 2011

Preparing an adequate defense to disciplinary action requires sufficient notice of charges


Preparing an adequate defense to disciplinary action requires sufficient notice of charges
Gustafeste v NYC Dept. of Sanitation, 282 A.D.2d 398

When an employee is served with disciplinary charges, he or she is entitled to be given information concerning such charges sufficient to permit his or her adequately preparing his or her defense [Pachucki v Walters, 56 AD2d 677]. Further, case law has long held that an employee may not be found guilty of acts of misconduct or incompetence that have not been charged [Shuster v Humphrey, 156 NY 231].

The Gustafeste case focused on the issue of providing the employee with sufficient information concerning the charges in order for him or her to be able to prepare his or her defense so that it cannot rightfully be claimed that the individual was found guilty acts or omissions that were not charged.

Joseph Gustafeste, a New York City Department of Sanitation employee, was found guilty of misconduct following his involvement in an accident while operating a department motor vehicle. The penalty imposed: a 30-day suspension without pay.

Gustafeste appealed, contending that the charges of misconduct filed against him by the department did not specifically charge him with having “caused the accident by negligently losing control of his vehicle.” Accordingly, he argued, he had not been given an adequate opportunity to prepare his defense against this allegation.

The Appellate Division decided that it was clear from the specifications set out in the charges filed against him that Gustafeste was being charged with “negligently operating his vehicle.” This, said the court, meant that Gustafeste had been given sufficient notice of the charge of which he was found guilty so as to enable him to adequately prepare his defense.

As to the penalty imposed – a 30-day suspension without pay -- the Appellate Division ruled that for the misconduct proved against [Gustafeste], some of which involved violations of Department of Sanitation safety rules, [such a penalty] does not shock the judicial conscience and accordingly may not be disturbed.”

Sometimes an employee will demand “a bill of particulars” requiring the employer to set out the charges and specifications filed against the individual in greater detail.

Although Education Law Section 3020-a 3 c(iii)(C) indicates that an administrator or teacher has the right to demand a “bill of particulars” concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law. In some instances the disciplinary grievance procedure set out in a collective bargaining agreement allows the employee to demand a “bill of particulars.”

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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