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Friday, August 09, 2013

Sending notices of disciplinary charges to an accused employee

Sending notices of disciplinary charges to an accused employee

13 Misc 3d 1226(A)*

An employee was dismissed from his position with Westchester County after being found guilty of the charges filed against him by the hearing officer. The disciplinary hearing, however, was conducted in absentia.

Claiming that he had not received any written notice of the charges preferred against him as required by Civil Service Law §75, the employee sued seeking to have the disciplinary determination vacated and reinstatement to his position with salary and benefits retroactive to the date of his termination.

It appears that the Department sent the notice of disciplinary action by Certified Mail but that the envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicated that the letter was mailed to a Briarcliff Manor, NY 10501 address with no building number.

The court found that under the circumstances the employee had not been served with the written notice of disciplinary charges mandated by Section 75 of the Civil Service Law and granted the employee’s petition.

Justice Bellatoni cited DelBello v. New York City Transit Authority, 151 AD2d 479, 542 NYS2d 270 (2nd Dep't 1989) in support of his ruling. In DelBello the Appellate Division affirmed a Supreme Court decision annulling and vacating a determination terminating DelBello’s employment. In that case, hearing notices were sent to an address from which DelBello had moved and all notices were returned to the Authority unopened and marked "moved-left no address".

The Appellate Division found that because the Authority undertook no other steps to notify the DelBello of the pending charges. “Clearly mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise DelBello’s of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections” said the court. In contrast, noted the Appellate Division, the Authority regarded the failure of [DelBello] to receive notice of the hearing and charges as [DelBello’s] problem”.

Justice Bellatoni rejected the Department’s argument that that even though the mailing was returned as unclaimed, it constituted reasonable notice of the charges against the employee and of the scheduled disciplinary hearing that was held in his absence.

Finding that the Department and the Hearing Officer acted in an arbitrary and capricious manner by proceeding with the disciplinary hearing in absentia, the court ruled that terminating the employee’s employment violated the requirements of Civil Service Law § 75.

Further, the court said “What is even more troubling is that [the employee] could have been served personally at his place of employment after the notice came back unclaimed.” At the very least, said the court, the Department could have inquired as to the employee’s address to ensure that the notice was properly sent.” Justice Bellatoni directed that that the matter be heard before a different Hearing Officer.

In contrast, an employee’s claim that she did not receive notice of disciplinary charges mailed to her was rebutted by employer’s evidence of proper mailings.

In a case involving the Board of Educ. of City School Dist. of City of N.Y.,** the court noted that the New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher by certified mail, return receipt requested and by regular mail.

Although the certified mail copy of the Charges was returned to BOE as “unclaimed,” the regular mail copy of the Charges was never returned. BOE subsequently again sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail.  Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned.

A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentia and the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

* The decision is posted on the Internet at:

** 2008 NY Slip Op 31935(U), Supreme Court, New York County, Judge Shirley Werner Kornreich [Not selected for publication in the Official Reports]. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_31935.pdf

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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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