Thursday, October 27, 2011

Due process and dismissal from office

Due process and dismissal from office
Mtr. of Gill, Decisions of the Commissioner of Education, 14,785

The decision by the Commissioner of Education in the Gill case explains the rights of a member of a school board and the procedures to be followed in the event a school board decides to remove one of its members from office.
The Wyandanch Union Free School District Board of Education voted to remove one of its board members, Andrew Gill, from office because of his alleged "official misconduct1."* According to the Commissioner's ruling, to constitute grounds for removal pursuant to Section 1709(18), the "official misconduct" must clearly relate to a board member's performance of official duties, either because of the allegedly unauthorized exercise of the member's powers or the board member’s intentional failure to exercise those powers to the detriment of the school district

Among the charges filed against Gill were the following:

1. Gill disrupted board meetings;

2. Gill falsely stated that the roof of a school building was in danger of falling down in an interview to be aired on television;

3.Gill, while representing that he was acting on behalf of the board, threatened to use physical force and used obscene language against a taxpayer; and

4. Gill asked a parent to bring false charges of sexual misconduct against a district employee.

In the course of the proceedings, Gill and his attorney left the hearing. The board continued the hearing "in absentia," presenting "the remainder of its proof in [Gill's] absence."** Following this, the board deliberated, found Gill guilty of a number of the charges and then voted to remove him for official misconduct. Gill appealed his removal from the Board, contending that he was denied due process.
In his appeal to the Commissioner, Gill argued, among other things, that the board did not respond to his "discovery demands" and otherwise acted to frustrate his right to administrative due process. Addressing this aspect of his appeal, the Commissioner said Gill cited no statutory or constitutional right to formal discovery in a removal proceeding conducted pursuant to Section 1709(18).*** 

In the words of the Commissioner: As long as [Gill] receive adequate notice of the charges, due process is served. 

The board, on the other hand, contented that it had provided Gill with a full and fair hearing consistent with his right to administrative due process and that it had properly removed from office after finding him guilty of official misconduct. The board also argued that Gill could have attempted to refute the charges at the hearing but elected to voluntarily absent himself from the proceeding.
The Commissioner sustained the board decision to remove Gill from office. He said that Section 1709(18) permits the board of education of a union free school district, among other things, "[t]o remove any member of their board for official misconduct."
The individual whom the board seeks to remove must be served with written charges at least ten days before the hearing and the individual must be "allowed a full and fair opportunity to refute such charges before removal." The Commissioner concluded that "[o]n the record before me, I find that [Gill was] afforded sufficient due process to satisfy this standard.
The Commissioner also found that Gill was given "a full and fair opportunity to refute the charges" as well as the opportunity to cross-examine the witnesses, examine the board's documentary evidence, and introduce his own documentary evidence.
In response to Gill's argument that he did not an opportunity to question a number of the witnesses who testified, the Commissioner said that Gill did have such an opportunity but "but voluntarily forfeited it by leaving the hearing under protest." The Commissioner also found that there was nothing in the record to justify Gill's electing to leave the proceeding.
Based on the totality of the circumstances, the Commissioner said that he did not find the board's removal of Gill for official misconduct to be improper and directed the board to appoint a successor trustee to replace petitioner Gill.
Another issue raised by Gill concerned his allegation that the hearing was "improperly conducted in executive session" in violation of the Open Meetings Law. The Commissioner said that the court has exclusive jurisdiction over complaints alleging violations of the Open Meetings Law and thus such complaints may not be adjudicated in an appeal to the Commissioner.
Finally, there was a recusal issue with respect to one of the board member's participation in the hearing and adjudication process involving Burnett. The Commissioner that it was improper for Wyandanch board member Rodney Bordeaux to consider the charges filed against Burnett.
According to the decision, Bordeaux was facing criminal charges of assaulting Burnett at the time of the hearing. 

The pendency of these charges, said the Commissioner, is a sufficient basis for someone to conclude that Bordeaux was likely to have some bias insofar as Burnett was concerned. Accordingly, noted the Commissioner, Bordeaux should have disqualified himself from participating in the determination of the charges filed against Burnett. In effect, the Commissioner cautioned that it is important to avoid even the appearance of bias in such a situation.

* Samuel Burnett, another trustee, was served with similar charges, found guilty of official misconduct and removed from office. On appeal, which was consolidated with the Gill appeal, [Decisions of the Commissioner 14,785] the Commissioner found that although there was proof sufficient to find Burnett guilty of some of the charges filed against him, the Commissioner did not find sufficient proof to establish grounds to justify Burnett's removal from office for "official misconduct." He directed that Burnett be reinstated to his position with the board.

** From time to time an individual may decline to participate in a disciplinary hearing being conducted pursuant to Section 75 of the Civil Service Law or some similar statute. It is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled 

*** Sometimes an individual will demand "a bill of particulars" requiring the appointing authority to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a.3c(iii)(C) provides an administrator or teacher with 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 a Taylor Law agreement will contain a provision allowing the employee to demand a “bill of particulars” in the course of a disciplinary action.

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

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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