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Wednesday, July 25, 2012

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination


An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination
Ashe v Town Bd. of The Town of Crown Point, N.Y., 2012 NY Slip Op 05693, Appellate Division, Third Department

The Town Board of the Town of Crown Point filed disciplinary charges against one of its employees pursuant to Civil Service Law §75.

The Board conducted the hearing rather than appointing a hearing officer hear the charges and make findings of fact and a recommendation as to the disposition of the charges. The Town Supervisor was the primary person to present proof in support of the charge.

Ultimately the employee was, a divided vote found guilty of misconduct and terminated from his employment with the Town Supervisor participating in the Board’s voting on the charge and penalty. The Supervisor voted in favor of the prevailing determination to find the employee guilty and terminate his employment with the Town.

The employee challenged the Board’s action.

As to the role of the Town Supervisor in the proceeding and adjudication, the Appellate Division, citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, noted that "Although '[i]nvolvement in the disciplinary process does not automatically require recusal,' . . . individuals 'who are personally or extensively involved in the disciplinary process should disqualify themselves from . . . acting on the charges.'"

Finding that the Town Supervisor “was extensively involved as she presented virtually all of the proof in support of the charge,” the court concluded that the Town Supervisor should have disqualified herself from voting on the final determination.

Considering a procedural challenge made by the Town concerning the employee’s appeal, the Appellate Division commented that although an objection to a particular hearing officer generally must be timely asserted at the hearing to preserve the issue for appeal, it is incumbent upon a person who has been extensively involved in the disciplinary process to "disqualify himself or herself from [involvement in] rendering a final determination," [emphasis supplied].

Finding that the Town Supervisor was extensively involved in the disciplinary proceeding but did not recuse herself from participating in the determination, the Appellate Division ruled that the determination must be annulled and the matter remitted to Town Board for a de novodetermination based on the record.

On this last point, the court noted that it appeared that the Board considered events that occurred after the misconduct alleged in the charges and the hearing. Accordingly, it said, the Board’s determination should not consider any such post-hearing events.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05693.htm


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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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