Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Monday, October 06, 2014

Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.


Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.
Sullivan v County of Rockland, 2014 NY Slip Op 06593, Appellate Division, Second Department

This decision demonstrates that in the event an employee has been served with, and found guilty of, multiple disciplinary charges and the penalty is imposed based on such a finding of guilt, should one or more the charges of alleged misconduct be subsequently annulled by a court the matter is to be remanded to the appointing authority for its determination as to the appropriate penalty to be imposed based on the surviving charges of misconduct..

A hearing officer found the employee [Individual] guilty of two specifications of charges of misconduct and recommended that Individual be terminated from his position. The appointing authority adopted the findings made by hearing officer and, in consideration of such findings, imposed the penalty of dismissal of Individual from his position.

Individual appealed and Supreme Court sustained the findings of "guilty of the two specifications" adopted by the appointing authority but “found that the penalty of termination was excessive” and remitted the matter to the appointing authority for the imposition of an appropriate punishment.*.The appointing authority appealed the Supreme Court’s order.

The Appellate Division sustained the Supreme Court order only to the extent that it found the hearing officer's finding Individual guilty of Specification 1.

The court said that it found that there was substantial evidence in the record to support the findings and conclusions of the hearing officer with respect to finding Individual guilty of Specification 1. However, said the court, the appointing authority’s determination with respect finding Individual guilty of Specification two was not supported by substantial evidence and thus the appointing authority’s determination that Individual was guilty of the misconduct alleged in Specification two must be annulled and that Specification dismissed.

Addressing the procedures followed in this action the Appellate Division explained that "The review of an administrative decision made after an employee disciplinary hearing is limited to a consideration of whether the determination was supported by substantial evidence."  In the event the petition before Supreme Court raises a question of whether an administrative determination is supported by substantial evidence the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue.**

Substantial evidence "is related to the charge or controversy and involves a weighing of the quality and quantity of the proof." and the term "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

In the event there is conflicting substantial evidence or different inferences may be drawn from such substantial evidence, the duty of weighing the evidence and making the choice is vested in the  administrative body concerned, in this instance the appointing authority as the controversy involves a challenge to a disciplinary action taken against an employee. Courts may not weigh the evidence or reject the choice made by administrative body where substantial evidence is conflicting and room for choice exists.

Here, however, the Appellate Division held that because it found that one of the two specifications of misconduct relied upon was annulled as not supported by substantial evidence, the penalty imposed by the appointing authority must be vacated and the matter remitted to the appointing authority to consider the appropriate penalty to be imposed upon Individual as the result of his having been found guilty of Specification one alone.

* Individual also appealed Supreme Court’s decision that found the hearing officer's findings and conclusions were supported by substantial evidence and were appropriately adopted by the appointing authority.

** See §7804[g] of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

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/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

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 in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.