Tuesday, April 18, 2017

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error


Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error
Hopton v Ponte, 2017 NY Slip Op 02649, Appellate Division, Second Department

New York City Correction Officer [Petitioner] was found guilty of violating certain Department of Correction rules and was terminated from her position. Contending that the administrative law judge (ALJ) that had presided at her Civil Service Law §75 disciplinary hearing did not have the authority and jurisdiction to conduct the hearing, Petitioner filed an Article 78 action with Supreme Court seeking to vacate the decision and have the court order the Department to reinstate her to her former position.

Supreme Court granted the Department's motion to her to dismiss Petitioner's claim "for failure to state a cause of action" and Petitioner appealed the court's ruling to the Appellate Division.

Civil Service Law §75, in relevant part, provides that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." Explaining that "The failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), is a jurisdictional defect that renders the hearing officer's determination null and void," the Appellate Division said that in this instance the ALJ had been properly designated to conduct Petitioner's disciplinary hearing and to make findings of fact and to recommend the penalty that should be imposed by the appointing authority.

The Appellate Division noted that in accordance with a written request sent to the Chief Administrative Law Judge of the New York City's Office of Administrative Trials and Hearings [OATH] by the then serving appointing authority, the Chief Administrative Law Judge had properly designated an OATH ALJ to conduct Petitioner's disciplinary hearing and to make findings of fact and a recommendation with respect to penalty that should be imposed in the event Petitionerwas found guilty of one or more of the disciplinary charges and specifications served upon her.

Accordingly, said the court,  Petitioner's allegations, even if accepted as true, failed to state a cause of action based on the ALJ's purported lack of jurisdiction over her  disciplinary hearing and dismissed her appeal.

The decision is posted on the Internet at:

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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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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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