The employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed
OATH Index #2743/15
A sergeant who worked the overnight tour at a juvenile detention center employed by ACS was charged with multiple employment infractions spanning nine months. Two supervisors testified at trial that the sergeant failed to complete work duties, including completing reports, attending meetings, properly signing out equipment, wearing his uniform, and responding to supervisors’ requests.
OATH Administrative Law Judge John B. Spooner found the proof sufficient to sustain most of these charges. Based on the sergeant’s three prior disciplinary incidents, generally poor work evaluations, and recent egregious conduct, ALJ Spooner recommended that he be terminated from his position.
In Scott v Wetzler, 195 AD2d 905, the court rejected Scott’s argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing. The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file. Another decision frequently cited as authority for this proposition is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470.
The general rule applied by the courts when asked to determine if the employee’s personnel record was lawfully considered in setting the disciplinary penalty is that the employee’s personnel records may be considered in setting a disciplinary penalty, provided the employee is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file. Although the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty to recommend or determine, it is essential that he or she be notified of that provide the opportunity to review and comment on his or her personnel record.
The decision is posted on the Internet at:
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