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March 21, 2017

Disciplinary hearings held in absentia



Disciplinary hearings held in absentia
NYC Office of Administrative Trials and Hearings [OATH], Index No. 728/17

A New York City tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations. The auditor failed to appear at trial and the hearing proceed in absentia.

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed with the hearing but it must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing* as scheduled is, in effect, a concession of guilt.

OATH Administrative Law Judge Ingrid M. Addison conducted the hearing in "the form of an inquest" at which the Department presented the testimony the employee's supervisor, and documentary evidence.

Based on credible testimony from the auditor's supervisor and documentary evidence, Judge Addison sustained the charges. She found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct. The ALJ then recommended that the employee be terminated by the appointing authority.  

* N.B. The appointing authority is required to make a reasonable effort to contact the employee before proceeding to hold a disciplinary hearing in absentia. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment. Attempting to contact the accused, or his or her attorney,  is advisable even if the individual had announce that he or she does not intend to appear at the hearing as scheduled since he or she can elect to do so the last moment and then be prevented from being present at the proceeding as the result of some legitimate mischance or medical inability.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
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