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May 24, 2016

Conducting disciplinary hearings in absentia

Conducting disciplinary hearings in absentia
OATH Index No. 1046/16

Although rare, an employee upon whom disciplinary charges have been served may refuses to participate in the scheduled disciplinary hearing. If the appointing authority goes forward with the disciplinary hearing notwithstanding the employee’s failure to participate, has the employee been denied due process?

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.*

OATH Administrative Law Judge John B. Spooner conducted a Civil Service Law §75 disciplinary hearing with the employee in absentia when the appointing authority appeared at the scheduled time and place but the employee declined to do so. Judge Spooner characterized the hearing as being in the “form of an inquest” and found that the appointing authority had [1] properly served the employee with the disciplinary charges and the notice of the hearing, and [2] had then produced records and the provided testimony by the employee’s supervisors supporting the charges of the employee’s alleged misconduct at the "inquest." The ALJ found that that the appointing authority had proven the employee was guilty of the charges and recommended that the employee be terminated from service. 

This is another example demonstrating that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Holding a disciplinary action in absentia, however, is a two-way street. Case law demonstrates that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. 

In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the disciplinary arbitration because it believed that Hall was not entitled to the disciplinary arbitration. The arbitrator ruled in favor of the employee and directed Environment Conservation to reinstate the employee to his position with back pay. 

Environmental Conservation [DEC] sought a court order vacating the arbitration award, contending that its termination of Hall was not subject to being challenged pursuant to the “contract disciplinary procedure” because the State Department of Civil Service had disqualified Hall for employment. DEC argued that as Hall’s appointment had been voided by the Department of Civil Service he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.**

A Supreme Court judge granted the union’s motion to confirm that portion of the award providing for the payment of certain back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department’s action but declined to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division sustained the lower court’s ruling.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

** Pursuant to Civil Service Law Section 76.4, many Taylor Law collective bargaining agreements provide that a permanent employee in the classified service may challenge a disciplinary action in accordance with the terms set out in a "contract disciplinary procedure" that is operative in lieu of disciplinary action pursuant to a statutory disciplinary procedure [see Antinore v State, 40 NY2d 6].

Judge Spooner’s decision is posted on the Internet at:

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