Tuesday, June 23, 2015

Employer has the burden of proving that the disciplinary charges filed against the employee were timely served


Employer has the burden of proving that the disciplinary charges filed against the employee were timely served
2015 NY Slip Op 04940, Appellate Division, First Department

The disciplinary hearing officer found that the tenured teacher [Teacher] was guilty of two of three sets of charges and imposed the penalty of termination from his position.

Teacher appealed and Supreme Court granted his petition to vacate a hearing officer's award to the extent of annulling the portion of the award that sustained a third set of charges against Teacher and imposed the penalty of termination. The court remanded the matter to Teacher’s employer, the New York City Department of Education (DOE) for the imposition of an appropriate lesser penalty.

On appeal, the Appellate Division “unanimously affirmed” the Supreme Court’s action.

The Appellate Division said that there was nothing in the record to support Teacher’s claim that his due process rights were violated as the result of his having been provided with the third set of charges after having been served the first two sets of charges. The court explained that Teacher had more than 10 days before he offered testimony with respect to those charges, and he did not object to DOE's request for consolidation of all of the charges against him.

In addition, observed the Appellate Division, “[e]ven though DOE did not specify the precise sections of the Penal Law allegedly violated, the allegations in the three specifications fairly apprised” Teacher of the basis the alleged misconduct underlying the charges filed against him. As the Court of Appeals held in Matter of Block v Ambach, 73 NY2d 323, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense."

Notwithstanding this, the Appellate Division said that Supreme Court did not exceed its authority in finding that the third set of charges against Teacher was time-barred.*

Although DOE had requested that hearing officer to take judicial notice of two sections of the Penal Law and repeatedly characterized Teacher's conduct as "criminal," the hearing officer did not find that Teacher’s conduct as alleged in the third set of charges constituted a crime. Thus there was no basis triggering the three year exception regarding timeliness set out in Education Law §3020-a(1) and DOE had the burden of establishing that the charges served on Teacher were timely.

As the DOE essentially conceded at the disciplinary hearing that the first and second set of charges against Teacher do not support the penalty of terminating Teacher's employment with DOE, The Appellate Division concluded that Supreme Court correctly remanded the matter to DOE for the imposition of an appropriate lesser penalty.

* See Education Law §3020-a(1). Disciplinary charges against a teacher must be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed.

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/

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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