Thursday, September 08, 2011

Disciplinary suspension without pay


Disciplinary suspension without pay
Wachtmeister v Andrus, 279 A.D.2d 82

Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without for up to thirty days pending a resolution of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.

In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeister on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.

On April 2, 1998, however, Wachtmeister was again removed from the payroll, this time in accordance with the terms of her signed “release.” The release provided that Wachtmeister agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.

As the Wachtmeister decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.

In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.

Wachtmeister, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeister sued for her back pay for the period she was suspended without pay in excess of thirty days.

The Appellate Division rejected Wachtmeister claim for back pay for this period as she had been removed from the payroll consistent with the terms of the “release.” It had no difficulty with concept of suspending the employee without pay under such circumstances.

The court also rejected Wachtmeister's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.

Further, the court rejected Wachtmeister's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeister's] misconduct.”


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/

Challenging Adverse Personnel Decisions 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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