October 21, 2014

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days


Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days
Alarcon v Board of Educ. of S. Orangetown Cent. School Dist , Appellate Division, Second Judicial Department, 2014 NY Slip Op 06969. [Alarcon II]

In Alarcon I, [Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 85 AD3d 780], the Appellate Division directed the reopening of the disciplinary hearing after finding that a key witness against Alarcon recanted the testimony he gave at the disciplinary hearing.  

The court explained that the South Orangetown Central School District had adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and recommended that Alarcon's be dismissed from his position. However, said that Appellate Division, the hearing officer's recommendation that Alarcon be terminated from service "was largely based upon the testimony of the eyewitness," one Ramon Reyes.

After Reyes testified, but prior to the issuance of the hearing officer's report and recommendation, Reyes had recanted his testimony and, in a sworn affidavit, stated that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie. 

Under the circumstances, the Appellate Division annulled the Board’s determination on the law and remitted the matter for a hearing at which Alarcon was to be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination.

A second hearing was conducted, after which the Board of Education adopted the findings and recommendation of a hearing officer who had found the Alarcon guilty of certain charges of misconduct and incompetence and recommended that he be dismissed from his position. The Board again imposed the penalty of dismissal and terminated Alarcon’s employment with the School District.

Alarcon challenged the Board’s action, which the Appellate Division addressed in instant appeal, Alarcon II.

In Alarcon II the court sustained the Board’s action and found that contrary to Alarcon’s contention, the challenged determination was:

1. Supported by substantial evidence in the record; and

2. The penalty imposed by the School Board was not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The Appellate Division, however, sustained Alarcon’s claim that he was entitled to back pay and benefits "for any period of suspension in excess of 30 days, including the period commencing with an earlier determination terminating his employment," which was previously annulled by the Appellate Division in Alarcon I, up to the date of the determination by the Appellate Division in Alarcon II, “excluding any delay occasioned by him, and less any unemployment insurance benefits received for that period.”

The court than remitted the matter to the School Board to calculate the amount of “back pay and benefits to which [Alarcon] is entitled, if any, and to pay him that amount.”

Another decision in which “tainted testimony” was the basis for overturning a disciplinary determination is Buric v Safir, 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688. This case also involved a claim for back salary and benefits that, under there relevant circumstances, was denied.

The decision in Alarcon I is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05055.htm

The decision in Alcarcon II is posted on the Internet at:

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