Thursday, January 08, 2015

A board member’s involvement in the disciplinary process does not automatically require recusal of that individual



A board member’s involvement in the disciplinary process does not automatically require recusal of that individual
2014 NY Slip Op 08892, Appellate Division, Third Department

A former employee of the Madison County Probation Department filed a personnel complaint and threatened litigation regarding actions by her supervisor [Supervisor]. The County Board of Supervisors initiated an investigation and subsequently placed the supervisor on paid administrative leave. Ultimately Supervisor was offered a severance package that included, among other things, six months' pay if she voluntarily resigned. Supervisor rejected the offer the Board brought five disciplinary charges against her pursuant to Civil Service Law §75.
After a hearing the Hearing Officer issued a detailed written decision in which he determined that Supervisor was guilty of the first three charges of misconduct, but that charges four and five had not been proven. As to the penalty to be imposed, the Hearing Officer recommended that Supervisor be terminated from her position.

Two of the members of the Board had disqualified themselves from considering of the Hearing Officer's findings and recommendation because they had participated in the investigation and in the negotiations to have Supervisor. The remaining members of the Board considered the matter over the course of two meetings and ultimately adopted the findings and recommendation of the Hearing Officer and terminated Supervisor.

Supervisor filed a CPLR Article 78 petition seeking a court order annulling the Board’s determination, contending that the Board had prejudged the charges against her and engaged in impermissible ex parte communications regarding the charges filed against her.

Supreme Court denied Supervisor’s petition and the Appellate Division sustained the lower court’s determination.

Addressing the propriety of the several Board members in the disciplinary process, the Appellate Division observed that “Involvement in the disciplinary process does not automatically require recusal" and a Board may "serv[e] a dual investigatory and adjudicatory function." However, said the court, “individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer"

In Supervisor’s case, the two members of the Board had disqualified themselves from consideration of the Hearing Officer's recommendation because they had participated in the investigation and the negotiations to have petitioner resign. The remaining members of the Board considered the matter over the course of two meetings and ultimately adopted the Hearing Officer's findings and recommendation.

The Appellate Division held that employing an investigator and being aware of the result of that investigation before bringing charges against Supervisor did not disqualify the entire Board, noting that the two Board members who were actively involved in prehearing matters pertaining to Supervisor did, in fact, disqualify themselves.**
 
The court also noted that a minor amendment was made to the first charge part way through the hearing, and at a time when Supervisor had ample opportunity to respond to the amendment. Accordingly, said the court, this minor change did not deprive her of due process.

Finding that the record contained substantial evidence supporting the Board's determination and that the penalty imposed, termination, does not, under the circumstances, "shock the judicial conscience," the Appellate Division, Justice McCarthy dissenting,*** dismissed Supervisor’s appeal.

* The decision notes that Supervisor made similar allegations in a federal action that she commenced while this disciplinary proceeding was pending, and the defendants in that action successfully moved for summary judgment (2014 WL 2510565, 2014 US Dist Lexis 75882 [ND NY 2014]). 

**  The Appellate Division noted that the Board has a "presumption of integrity" and Supervisor did not overcome that presumption.

***Justice McCarthy voted to annul the Board’s determination, stating that "[W]here, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required."


The decision is posted on the Internet at:
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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
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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/

Challenging Adverse Personnel Decisions 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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