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Tuesday, October 15, 2013

Some important procedural matters in processing disciplinary action


Some important procedural matters in processing disciplinary action
Decisions of the Commissioner of Education, Decision 10894

On occasion a determination by the Court or an administrative body is instructive to non-participants because of the procedural matters it discusses. An example of this is found in Decision 10894 by the Commissioner of Education.

In this appeal involving processing a disciplinary procedure initiated pursuant to §3020-a of the Education Law, the Commissioner dismissed both the appeal by the employer and the cross-appeal filed by the teacher, noting:

     1. The subpoenas duces tecum (produce the papers) served on the District was non-judicial subpoena and it was necessary for the teacher to seek a Court judicial subpoena compelling compliance [see CPLR §2308(b)].

     2. Charges served on the teacher not sufficiently specific to enable the teacher to adequately respond may be dismissed (without prejudice) by the hearing panel chair.

     3. §3020-a procedures are not required to comply with technical rules of evidence and hearsay testimony in such hearings is not improper.

     4. Admissions against interest alleged to have been made by an employee will not satisfy the District’s burden of proof, and due process requires the production of, and the opportunity to cross-examine, a witness who could competently testify to the fact that such a statement was made by the employee in question.

These basic concepts apply in Civil Service Law §75 disciplinary actions and are typically followed in contract disciplinary arbitrations as well.
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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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