Friday, March 23, 2012

A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer
Baker v Poughkeepsie City School Dist., 2012 NY Slip Op 02126, Court of Appeals

Must persons who have testified in a Civil Service Law §75 disciplinary hearing disqualify themselves from subsequently acting upon any of the charges related to that hearing?

In most instances, said the Court of Appeals, the answer is "yes," holding that when the testimony of the testifying witnesses concerning the charges levied pursuant to §75, rendered them personally involved in the disciplinary process, disqualification is necessary.

According to the decision, the Superintendent of Schools of the Poughkeepsie City School District preferred eight charges of "misconduct and/or incompetence" against Jeffrey Baker, the then Business Manager of the School District.

The Board of Education appointed a hearing officer to preside over the disciplinary action. Two Board members testified at the disciplinary hearing. The hearing officer reported to the Board his findings and recommended that Mr. Baker be found guilty of the eight charges and that his services be terminated.

The Board, including the two members that testified at the hearing, adopted the findings and recommendations, and terminated Mr. Baker's employment. Mr. Baker, challenging the Board's determination, filed a petition pursuant to CPLR Article 78.

The Appellate Division "grant[ed] [Mr. Baker’s] petition, annul[led] the determination, and remit[ted] the matter to the Board, excluding the members of the Board who testified at the disciplinary hearing, for a review of the findings and recommendations of the hearing officer." The School District appealed and the Court of Appeals affirmed the Appellate Division’s ruling.

The Court of Appeals explained that “Although ‘[i]nvolvement in the disciplinary process does not automatically require recusal,’ we recognize that individuals ‘who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of the hearing officer and from acting on the charges’"

Accordingly, said the court, it is appropriate for a witness testifies in the course of a disciplinary hearing concerning charges levied against an individual, to recuse himself or herself from reviewing the recommendations of the hearing officer and rendering a final determination [see Informal Opinions of the Attorney General, 99-21].

However, not all testimony will require disqualification with respect to reviewing the recommendation of the hearing officer and participating in the final decision making process. Such disqualification, said the court, is only required “where the testimony of the official directly supports or negates the establishment of the charges preferred.”

The court then noted an exception to this -- the “Rule of Necessity.” Such disqualification in a §75 proceeding is inappropriate where “such person is necessary to effectuate a decision.”*

In this instance the two witnesses were “extensively involved in the disciplinary process.”  As neither of their votes were needed to take disciplinary action, obviating the “Rule of Necessity, the Court of Appeals decided that the Appellate Division properly granted the petition, annulling the determination and remitting the matter to be decided without the testifying board members.

Justice Pigott, however, dissented from the majority opinion, noting that in his view the two members of the Board that testified “were not required to disqualify themselves from rendering a determination on the hearing officer's recommendation,”

Noting that “In response to the Appellate Division's directive that the matter be remitted for a decision without the participation of [the two board members that testified], the school board did that and voted to terminate Mr. Baker for cause. All our decision will mean is, notwithstanding the fact that Mr. Baker never challenged the testimony proffered against him, Mr. Baker will nonetheless recover back pay to which, by all accounts, he is not entitled.”

Justice Pigott said that “the majority's opinion today has consequences that extend beyond this case. There is nothing to prevent industrious attorneys for employer and employee alike from subpoenaing pertinent members of the governing boards to proffer testimony on matters tangential to the issues, thereby obtaining disqualification of members who they expect to vote counter to the interests of their clients, or at the very least, engaging in a contest of this nature, buying valuable back pay considerations as the matter is litigated - precisely what Civil Service Law §75 was designed to avoid” and would reverse the order of the Appellate Division.

* In most instances where a “single appointing authority” is a witness at the disciplinary action, he or she will designate another individual to review the hearing officer’s findings and recommendation and make the final determination as to the penalty to be imposed. Further, in some disciplinary procedures, such those set out in §3020-a of the Education Law, the “decision maker” is not the appointing authority and either the accused employee or the appointing authority may appeal the arbitrator’s determination and, or, the penalty imposed. 

The decision is posted on the Internet at:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1476 page e-book. For more information click on

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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