Monday, September 19, 2011

Recommendation of the hearing officer

Recommendation of the hearing officer
Spry v Delaware Co., 277 A.D.2d 779

Delaware County Countryside Care Center ward clerk Valentina Spry was charged with numerous specifications of “incompetence, insubordination, conduct unbecoming an employee, serious misconduct and unauthorized use of facility property” pursuant to Section 75 of the Civil Service Law.

The hearing officer found Spry guilty of a great many of the charges and recommended that she be demoted in grade and title. Countryside's administrator adopted the Hearing Officer's findings of guilt but rejected the recommendation as to penalty. The penalty imposed by the administrator: dismissal.

Spry appealed her termination. She, however, did not challenge the hearing officer's finding her guilty of certain charges. She, instead, complained that the administrator's rejection of the Hearing Officer's recommendation of the penalty to be imposed and his subsequent determination to terminate her employment instead is not supported by substantial evidence in the record.

The Appellate Division rejected Spry's argument. It held that the appointing authority "is free to disregard the recommendation of its Hearing Officer, to make new findings and to impose different discipline" and the penalty imposed will not be set aside unless it is found to be shockingly unfair within the meaning of the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

As to the appointing authority's making new findings, however, such findings must be based on substantial evidence in the record and the courts will uphold such determinations if there is a rational basis for the decision.

The Shurgin case [Shurgin v Ambach, 83 AD2d 665, affirmed by the Court of Appeals (56 NY2d 700)] explores this type of situation.

In Shurgin a Section 3020-a disciplinary panel imposed a reprimand as the disciplinary penalty. The panel found Shurgin, a teacher, guilty of "poor judgment" for showing "pornographic films" to his class.

The school district appealed to the Commissioner of Education, who found that a reprimand was disproportionately lenient for this "very serious offense" and directed that Shurgin be terminated instead.

The Court upheld the Commissioner's determination.

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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