New York Public Personnel Law: The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

July 30, 2013

The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

31 AD3d 860

The Appellate Division, Third Department, affirmed the termination of a State Trooper after the Trooper was being found guilty of making unwanted sexual advances involving two female coworkers, rejecting his contention that the appointing authority “blindly accepted” the findings and recommendation of the disciplinary hearing Board rather than undertake an independent review of the evidence.

Significantly, the court said that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted in the course of the hearing, citing Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957).

In this instance, the court commented, the Trooper failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620, 628 [1955].

The Appellate Division also ruled that charges filed against the Trooper were not time barred since the Civil Service Law provides an exception to an 18-month statute of limitations in which to commence disciplinary proceedings if the charged misconduct "would, if proved in a court of appropriate jurisdiction, constitute a crime" (Civil Service Law §75[4]).

The court determined that misconduct alleged in one charge filed against the Trooper, if proven in a court of law, would constitute the crime of gender abuse in the third degree (see Penal Law §130.55) and thus this charge fell within the statutory exception and was not time barred.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05274.htm

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.