Monday, July 21, 2014

Disciplinary arbitration award remanded for reconsideration of the appropriate penalty to be imposed for a second time


Disciplinary arbitration award remanded for reconsideration of the appropriate penalty to be imposed for a second time
Social Services Employees Union v City of New York, 2014 NY Slip Op 04120, Appellate Division, First Department

In 2009 Supreme Court, New York County granted the Social Services Employees Union’s [Union] petition to confirm a disciplinary arbitration award that reinstated its member [Employee] to his former position and awarded him back pay and seniority.

The Appellate Division unanimously reversed the Supreme Court’s ruling, on the law, and remanded the matter to the arbitrator for a determination of an appropriate penalty * The Appellate Division explained that the arbitrator's "failure to give preclusive effect to Employee’s guilty plea of petit larceny" was irrational. The court noted that the arbitrator's award placed Employee back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.

In reconsideration of the penalty to be imposed upon the remand, the arbitrator issued an arbitration award that directed Employee’s reinstatement “to a civil service position with certain limitations of responsibility, along with an award of full back pay, seniority and benefits.” Supreme Court granted the Union’s Article 75 petition to confirm this second arbitration award. The City appealed.

The Appellate Division again vacated Supreme Court’s action, holding that “The award issued upon remand by the arbitrator was irrational as it was not in accord with [its] directive that [the Union] member's criminal conviction mandated a finding of employee misconduct warranting a penalty.” Here, said the court, the reinstatement of Employee "to a civil service position with certain limitations of responsibility, along with an award of full back pay, seniority and benefits, effectively did not impose any penalty.”

The Appellate Division then remanded the matter to a different arbitrator for the purpose of setting an appropriate penalty, which, said the court, could be any penalty within the range of penalties available to the arbitrator to impose.

Judges Saxe and Freedman, dissented, indicating that, in their view, “the award was rational and complied with this Court's directions in its prior order in this matter.

In situations where an employee is charged with misconduct after he or she has been convicted of a crime involving the same unlawful action or activity, the accused individual may argue that "double jeopardy" bars his or her being subjected to administrative disciplinary action involving the same events that led to his or her conviction of a crime. 

Although the Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution prohibits anyone from being prosecuted twice for substantially the same crime and is typically raised as a "procedural defense" in a criminal proceeding, does not bar the filing administrative disciplinary charges against an individual against whom criminal charges have been filed involving the same event or events. 

Indeed, as the Appellate Division held in Kelly v Levin, 81 A.D.2d 1005, if an individual has been found guilty of criminal conduct in a criminal trial, a disciplinary hearing panel cannot find the individual not guilty of the same offense[s] in a subsequent administrative disciplinary action

Although an individual may be found not guilty of alleged criminal acts in a criminal action, he or she may be found guilty of such conduct in an administrative proceeding as there is a lesser standard of proof to be met in the case of an administrative action. In an administrative proceeding a person must be proved guilty of the acts or omissions alleged by "substantial evidence." In contrast, in a criminal trial "guilt beyond a reasonable doubt" must be proved by the charging party.

* See Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 A.D.3d 644
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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html
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