Monday, June 11, 2012

A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty


A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty
Gibson v Board of Educ. for The City School Dist. of Albany,2012 NY Slip Op 04441, Appellate Division, Third Department

A City School District of Albany account clerk was charged with two specifications of incompetence: unsatisfactory work performance and excessive absenteeism, during the 2009-2010 school year. Following a hearing pursuant to Civil Service Law §75, account clerk was found guilty of both specifications and the Hearing Officer recommended dismissal as a penalty to be imposed.

The appointing authority accepted the Hearing Officer's findings and recommendation and terminated account clerk's employment with the school district. Contending that the evidence did not support the Board's finding that her conduct and deficiencies rose to the level of incompetence, and that dismissal is an inappropriate and excessive penalty, the account clerk appealed.

The Appellate Division ruled that “The determination of the Board must be upheld where, as here, it is supported by substantial evidence,” explaining that "a finding of incompetence only requires evidence of some dereliction or neglect of duty." Further, said the court, testimony by the account clerk’s immediate supervisors, coworkers and two district-level assistant supervisors, and the documentary evidence — including the clerk's employee evaluations in March 2009 and May 2010 and attendance records — “provided overwhelming evidence to substantiate each of the specifications of misconduct.”

As to the penalty imposed, dismissal, the Appellate Division said that “on the record before us, we do not find the penalty of termination shocking to the judicial conscience,” citing Kelly v Safir, 96 NY2d 32, and Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the individual was “given numerous warnings over a period of many years and failed to assume responsibility for her shortcomings.”

Accordingly, said the court, “In view of the foregoing, the Board's implicit conclusion that further attempts to rehabilitate and retrain petitioner would be futile is neither unfair, shocking nor an abuse of discretion.”

The decision is posted on the Internet at:


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