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February 3, 2016

The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The right to a disciplinary hearing may survive the individual’s resignation or retirement from the position
Hughes v. County of San Bernardino, California Court of Appeals, Docket E-060294

Robert Hughes had been served with, and found guilty of, certain disciplinary charges. The penalty imposed: a 15-day suspension without pay, which resulted in a loss of about $7,000 in pay.

Hughes initiated an administrative appeal pursuant to the San Bernardino County’s civil service rules, but missed the scheduled hearing after suffering a heart attack. Hughes retired for medical reasons before the appeal hearing could be rescheduled.

The County refused to reschedule the hearing, contending that he was no longer an employee entitled to an administrative appeal. The San Bernardino Civil Service Commission ruled that it had no jurisdiction to continue with the appeal. 

Ultimately the California Court of Appeal ruled that Hughes was entitled to complete his administrative appeal as provided in the County's Personnel Rules.

In Blair v Horn* a New York Supreme Court justice considered the same issue, and came to a similar conclusion.

Clinton Blair sued the New York City Department of Correction (DOC) seeking a court order directing DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement after the Department had denied his request for such a hearing.

The court ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated as Blair was no longer working and remained on the payroll solely for purposes of exhausting leave that had been approved in anticipation of the termination of his employment.

While the court sustained DOC’S determination denying Blair’s request to “withdraw his retirement,” the court nevertheless ruled that Blair was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.” 

In effect, these decisions provided Hughes and Blair, respectively, "name clearing hearings." As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal of an individual is of a "stigmatizing nature" and there has been "publication" of such a basis or reason, the individual is entitled to some due process so as to clear his or her name.**

Although in both Hughes and Blair the courts ruled that an individual was entitled to go forward with a disciplinary hearing despite resignation or retirement, the converse is also possible wherebythe employer may elect to go forward and prosecute disciplinary charges that were pending at the time an individual left its employ and  the employee's resignation or retirement will not defeat the appointing authority's ability to go forward with the disciplinary action.

In other words, a disciplinary action may survive the individual’s resignation or retirement from his or her position.

4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service,*** permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and the penalty imposed is dismissal from the his or her employment, to record his or her separation as a dismissal rather than as a resignation.

The significance of this is that should the appointing authority elect to proceed with the disciplinary notwithstanding the employee’s resignation from the position and finds the individual guilty of such charges and imposes the penalty of “dismissal,” should a  prospective employer asks if the individual had ever been removed from his or her employment “for cause,” the correct answer would be “yes.” Further, such an individual may be found to be disqualified for unemployment insurance benefits.

Further, the decision in Blair suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b).

* Blair v Horn, 2008 NY Slip Op 32581(U)[Not selected for publication in the Official Reports], is posted on the Internet at:

** For example, a provisional employee [see Browne v City of New York, 45 AD3d 590] or a probationary employee who has been terminated from his or her position [see Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623,] or an individual alleging his or her retirement was a “coerced" retirement” [see Murphy v City of New York, 35 AD3d 319], among others, may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual [see Matter of Brathwaite, 70 AD2d 810].

*** Although 4 NYCRR 5.3(b) applies only to these entities, many local civil service commissions have adopted a similar rule.

The Hughes decision is posted on the Internet at:

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.