New York Public Personnel Law: Provisional employee gets “name clearing hearing”

November 15, 2011

Provisional employee gets “name clearing hearing”

Provisional employee gets “name clearing hearing”

Matter of Brathwaite, Appellate Division, 70 AD2d 810

Although agreeing that provisional employees have no property right in a particular position and, therefore, are not entitled to a pre-termination hearing under the Civil Service Law, the Court ordered a “name clearing hearing” on the claim that the employee’s “good name, reputation, honor or integrity is at stake”. The reason given for the discharge, disclosing confidential material that the employer alleged was disseminated by the employer.

The employee, a teacher, denied the allegation but was nevertheless separated.

The Court held that the alleged dissemination adversely reflected on her record as a teacher and diminished her ability to secure similar employment. The opportunity to be heard was deemed essential to due process.

N.B. Should an individual prevail in a "name-clearing" hearing, all that he or she is entitled to is a "cleared name" and his or her success does not automatically result in his or her reinstatement to his or her former position.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.