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Friday, September 02, 2011

Authority to hear a disciplinary appeal


Authority to hear a disciplinary appeal
Pierino v Brown, 281 A.D.2d 960

The issue in the Pierino case concerns the proper forum to consider a disciplinary appeal.

John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.

The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.

Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.

The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.

What was the basis for the court's action? The Appellate Division ruled that the issue of “substantial evidence” that formed the basis of Pierino's appeal is raised only if an administrative hearing is “required by law.” In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:

Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate. Consequently, the proceeding was erroneously transferred to this Court.

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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