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Thursday, April 11, 2013

Filing disciplinary charges and holding a disciplinary hearing obviates the individuals right to a name-clearing hearing

Filing disciplinary charges and holding a disciplinary hearing obviates the individuals right to a name-clearing hearing
Lally v Johnson City Cent. Sch. Dist., Decided on April 4, 2013, Appellate Division, Third Department

Among the issues considered by the Appellate Division was the Petitioner’s claim that he was denied a name-clearing hearing* and that he was terminated in bad faith as the result of his position being abolished by the School District.

Supreme Court denied the School District’s motion to dismiss the causes of action demanding a name-clearing hearing and the alleged bad faith abolition of Petitioner's position, ruling that discovery was needed with respect to Petitioner’s claim that the School District had abolished his position in bad faith.

The Appellate Division agreed in part with the Supreme Court’s ruling.

As to the Petitioner’s demand for a name-clearing hearing, the court said that Petitioner’s seeking a court order directing the School District to provide such a hearing alleged due process violations based upon School District’s failure to file disciplinary charges or otherwise provide him with an opportunity to challenge the claims against him.

However, said the court, disciplinary charges were subsequently filed against Petitioner pursuant to Education Law §3012(2)(a), “triggering the statutory procedures that afford him the opportunity to confront his accusers and entitle him to a hearing upon request.” Thus, said the Appellate Division, Petitioner has received the relief to which he claimed to be entitled and his demand for a name-clearing hearing is moot

Turning to Petitioner’s contention that his position had been abolished in bad faith, the court said that “A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it 'has made a good faith determination based on economic considerations,'" citing Gross v Board of Educ. of Elmsford Union Free School Dist., 78 NY2d 13. In order for an aggrieved individual to demonstrate that his or her position was abolished bad faith, he or she must show that the position was not eliminated for bona fide reasons, that savings were not accomplished or that a replacement employee was hired.

In this action Petitioner initially alleged that his position was not abolished for bona fide reasons but rather in retaliation for his commencing the CPLR Article 78 against the school district and as a pretext to gain his termination without filing disciplinary charges. In support of his claims, Petitioner said that his position was abolished only 10 days after he filed his initial petition pursuant to CPLR Article 78 and that the School Superintendent had previously suggested abolishing other employees' positions “for similarly improper reasons.”

In addition, Petitioner claimed that the School District had not considered or discussed abolishing his position as a cost-saving measure before he filed his Article 78 petition, that his position was the only one singled out for abolition among more than 200 employees of the school district, and that no other positions were abolished in the middle of the school year.

Rejecting the School District’s argument to the contrary, the Appellate Division said that it agreed with Supreme Court that “these specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of [Petitioner’s] position’ was motivated by reasons other than a desire to promote institutional efficiency and economy’ and thus state a cause of action.”

The Appellate Division agreed with Supreme Court's finding that further discovery was required before the question of School District’s' bad faith could be resolved and that Supreme Court did not abused its "considerable discretion" in determining here that further disclosure was appropriate.

As to Petitioner’s claim that the School District’s action constituted a breach of contract, the Appellate Division noted that Supreme Court found that this cause of action hinges upon the resolution of the Petitioner’s bad faith abolition of his position claim, “and there is no disagreement with this aspect of the decision upon this appeal.”

* Name-clearing hearings are ordinarily provided to probationary employees and others who lack the statutory due process protections of tenured employees and serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by the employer.  Prevailing at a name-clearing hearing does not entitle the individual to reinstatement or to reemployment in his or her former position. This means that being provided with a name-clearing hearing and having thereafter cleared his or her name is, at best, all the relief an individual can expect absent the individual demonstrating that hie or her termination was the result of an unlawful action by the appointing authority.

The decision is posted on the Internet at:

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

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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