Wednesday, October 12, 2011

Rejecting a hearing officer’s findings


Rejecting a hearing officer’s findings
Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.

It is well settled that an appointing authority may reject a Civil Service Law Section 75 hearing officer's finding of fact and penalty recommendation provided that the appointing authority's determination is supported by substantial evidence in the record and that the penalty imposed does not "shock one's sense of fairness."

The Perfetto case demonstrates how important it is for the appointing authority to specify the reasons for its rejection of all or a portion of the hearing officer's findings and recommendation.

Louis Perfetto, an employee of the Erie County Water Authority, was charged with three acts of misconduct, all related to absences from work. The first two charges concerned an absence in November of 2000 and Perfetto's alleged failure to provide proper documentation regarding that absence. Because the parties had entered into this settlement agreement concerning the first two charges in December 2000, the Hearing Officer ruled that this settlement precluded considering these two charges in the then current disciplinary action.

The third charge related to Perfetto's alleged misuse of sick time on March 27, 2001. While Perfetto claimed he was sick on March 27, there was evidence in the record establishing that Perfetto had left his home that morning to have a document notarized. The Hearing Officer concluded that the fact that Perfetto left his home on that date did not, in and of itself, "belie [his] claim that he was sick."

The appointing authority, however, rejected the Hearing Officer's findings of fact and recommendation. Although the appointing authority stated that Perfetto's testimony was "disproved by independent sources" in its decision, it failed to cite anything in the record to support this determination.

Insofar as the first two charges were concerned, the Court agreed with the hearing officer, concluding that any consideration of those charges by the appointing authority constituted an error of law because of a binding settlement had previously been reached regarding the acts underlying the charges.

As to the third charge, the court concluded that the employer's determination was arbitrary and capricious to the extent that the appointing authority failed to set forth any findings of fact supported by substantial evidence in the record to bolster its conclusion. Perfetto was awarded his job back, along with lost wages and benefits.

Substantial evidence is not a difficult burden to meet. The Appellate Division has defined substantial evidence as enough evidence that a” reasonable mind may accept as adequate to support a conclusion."

This definition of substantial evidence allows for different conclusions based on the same evidence, as long as a reasonable person could arrive at same conclusion that the finder of fact did.

Nevertheless, it is vital that in any final decision, whether it is in agreement with the hearing officer's findings of fact or not, that the appointing authority spell out its reasoning and in the event it rejects any or all of the hearing officer's findings, that specific reasons for the rejection be given and that such reasons be supported by substantial evidence in the record. To do otherwise, as the Perfetto case demonstrates, could be fatal to the appointing authority's determination.

In contrast, the individual's entire personnel record, including past disciplinary actions that "were settled" may be considered by the hearing officer in the context of a disciplinary action for the purpose of setting an appropriate penalty provided the individual is advised that his or her personnel records will be so considered and is given an opportunity to rebut any information in that file.

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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