Friday, July 06, 2012

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”


Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”
Canna v Town of Amherst, 55 AD3d 1269

Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R. was terminated from his employment following a hearing conducted pursuant to Civil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.

Canna appealed, contending, among other things, that the Section 75 hearing officer “was biased against him;” that the Town Board’s resolution to terminate his employment was not supported by the required number of valid votes; that the charges were barred by the 18-month statute of limitations set out in Section 75(4) of the Civil Service Law; and that the penalty imposed, dismissal, was “shocking to one’s sense of fairness.”

The Appellate Division rejected Canna’s claim the hearing officer was biased, holding that Canna failed to present "a factual demonstration to support the allegation of bias and proof that the outcome [of the hearing officers findings and recommendation] flowed from it."

As to the validity of the Board’s vote, the court rejected Canna’s claim that the Board’s vote was tainted by the statements by one Town Board member to the effect that it would be difficult for Canna to resume his position as superintendent of the Facility after all that had transpired. Further, said the Appellate Division, “The record establishes that he further stated that, although [that member of the Board] did not believe that [Canna] was ‘single handedly’ responsible for all of the problems at the Facility, he believed that the evidence establish that [Canna] was incompetent, and incompetence is a valid basis for termination.”

Addressing the other aspects of Canna’s appeal, the Appellate Division said that the disciplinary proceeding against Canna was not time-barred based on the 18-month limitations period set forth in Civil Service Law §75(4) because his “alleged incompetency was continuous” and that the penalty imposed upon him, dismissal, was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The full text of the decision is posted on the Internet at


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