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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

June 15, 2012

Consideration of ex parte information in a disciplinary action constitutes a denial of due process

Consideration of ex parte information  in a disciplinary action constitutes a denial of due process
Faga v Board of Educ. of Harrison Cent. School Dist., 2008 NY Slip Op 09078, Decided on November 18, 2008, Appellate Division, Second Department

An employee, terminated from his position with the Harrison Central School District, challenged the District’s action, contending that his due process rights were violated the Board of Education had “received ex parte information about the charges from the District's attorneys and the Superintendent of Schools.”

The individual also alleged that his right to due process was violated because the Superintendent submitted a statement to members of the Board before the charges were brought that he believed that charges could be sustained.

The Appellate Division found that the District established that the Board did not prejudge the matter nor did it rely on any improperly-obtained information in making its determination to dismiss the employee from his position.

In contrast, where the court finds that the rights of the accused were prejudiced because of some activity of the appointing authority, it will typically vacate the determination.

For example, in Ernst v Saratoga County, 234 AD2d 764, the Appellate Division annulled the dismissal of an individual found guilty of disciplinary charges because the chairman of the county Board of Supervisors - 
(a) met with the county’s attorneys “to discuss the pending investigation;” (b) met with the employees involved to, as the chairman phrased it, “relieve their fears;” (c) signed the notice of the charges against the individual, (d) voted to bring charges against the employee; (e) served as a witness at the disciplinary hearing; and (f) voted to accept a hearing officer’s findings of guilt and impose the recommended penalty. 

These actions, said the court, denied the employee a fair and impartial tribunal.

The Faga decision is posted on the Internet at:

Public Personnel Law E-books

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