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Tuesday, August 13, 2013

Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing

Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing 
34 AD3d 814

An individual [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law. He was dismissed from his employment after being found guilty of charges of misconduct and insubordination.

Employee sued, contending that the designation of the §75 hearing officer was not made by an officer or body having the power to remove him from his position as required by Civil Service Law §75(2). Consequently, he contended, the report of the hearing officer was a nullity and the determination based upon it was arbitrary. The Appellate Division agreed. It granted Employee's petition and annulled his dismissal.

The court pointed out that in the absence of a specific designation of the body or individual vested with the power to remove an individual from his or her position," the power to remove is a function of the power to appoint."

Employee argued that here the body with the power to remove him, i.e., the appointing authority, was the Board of Education and not the school superintendent. In this instance the hearing officer had been designated by the superintendent rather than the board as mandated by §75(2).

The Appellate Division concluded that on the basis of the record before it, “the designation of the hearing officer was not by an officer or body having the power to remove [Employee] as required by Civil Service Law §75(2).” Accordingly, the report of the hearing officer was a nullity and the determination based upon it arbitrary.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2006/2006_08989.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:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

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

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

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