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Friday, January 16, 2015

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding


Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding
Rea v City of Kingston,
2014 NY Slip Op 09079, Appellate Division, Third Department

Supreme Court, Ulster County, directed the City of Kingston to reinstate Christopher Rea to his position as Assistant Fire Chief for respondent City of Kingston with an award of retroactive back pay. The City appealed.

As indicated in a prior decision in this matter (Matter of Rea v City of Kingston, 110 AD3d 1227 [2013]), Rea was promoted from Assistant Fire Chief to Fire Chief of the City of Kingston Fire Department in January 2012. His appointment was rescinded and he was suspended without pay pending disciplinary charges. Disciplinary charges were eventually served on Rea alleging multiple specifications of misconduct, most of which pertained to time and leave issues, in August 2012.

The Appellate Division held that, consistent with the provisions of Civil Service Law §75(3),* Rea was "presumptively entitled to receive his regular compensation as Assistant Fire Chief" pending resolution of the disciplinary charges lodged against him” but that "the issue of compensation [could not] be definitively resolved on [the existing] record as [the City] contend[ed] that some [of the] delays [incurred] were either attributable solely to [Rea] or reflect[ed] periods waived by{REA]" and the matter was remitted the matter to Supreme Court "for further development of the record as to the issue of retroactive pay."

Supreme Court directed that the City conduct the disciplinary hearing within 30 days of the court's order to that effect and, notwithstanding certain unresolved factual issues, ordered the City to reinstate Rea to his position as Assistant Fire Chief with full pay and benefits, and without any offset, retroactive to March 10, 2012. Supreme Court also directed that, to the extent that City wished to pursue its claim for an offset, it could do so in the context of a separate action for recoupment.

In response the City’s appeal, the Appellate Division reversed so much the Supreme Court’s order that awarded Rea immediate back pay and benefits retroactive to March 10, 2012 and directed that City pursue any claim for an offset in a separate action, explaining that because the issue of retroactive pay could be resolved independently of Rea's disciplinary proceeding, "it should not serve as a basis for any further delay in holding the [subject] disciplinary hearing".

The decision also noted that Counsel for the City, in the course of oral argument, stated that the underlying disciplinary hearing was completed and that “the appointing authority, in turn, found [Rea] guilty of numerous specifications of misconduct and recommended that he be terminated from his employment.” Absent an appeal from this adverse disciplinary determination, presumably the only unresolved issue is the amount of back pay and benefits due Rea.

* Civil Service Law §75(3) provides for suspension pending determination of disciplinary charges and, in pertinent part, provides that “Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.”

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2014/2014_09079.htm

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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