January 16, 2018

Administrative due process in disciplinary actions

Administrative due process in disciplinary actions
Jacobson v Blaise, 2018 NY Slip Op 00205, Appellate Division, Third Department

Although this litigation concerned student discipline at a State University of New York campus, a number procedural issues are addressed that are but rarely focused on in considering matters involving administrative due process. The following are among the issues considered:

1. Constitutional due process rights: The New York State Department of Education has said that the student disciplinary process outlined in Education Law §6444(5)(b) "... should not be read to extend to private colleges the constitutional due process rights that apply to public colleges."

2. Presumption of innocence: Throughout the proceedings an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law §6444[5][c][ii]).[1]

3. Discovery: Citing Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, the Appellate Division said there is no "general constitutional right to discovery in . . . administrative proceedings."

4. Cross-examination: The Appellate Division explained that, in general, there is a limited right to cross-examine an adverse witness in an administrative proceeding [see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, supra, at 1432], and citing Winnick v Manning, 460 F2d 545, the Appellate Division noted that "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings."[2]

5. Credibility: The court indicated that it found it troubling that the hearing panel "duty bound to determine who to believe when faced with competing versions of events," resolved this fundamental credibility issue "without having had the opportunity to directly gauge ... [a witnesses]  credibility" and citing Doe v University of Cincinnati, 872 F3d at 404, the Appellate Division opined that when hearsay testimony is involved "there is no doubt that allowing [the accused] to confront and question [the accusing party in] the truth-seeking process and reduced the likelihood of an erroneous deprivation."

The decision is posted on the Internet at:



[1] Another issue, not raised directly in this case, concerns the need of an employee charged with incompetency or  misconduct submitting an answer to §75 disciplinary charges.  

Should an accused fail to file an answer to the charges and specifications may the appointing authority impose the proposed penalty without holding a disciplinary hearing? In the opinion of the author of this summary, Harvey Randall, no. Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply provides that, but does not mandate, the employee have at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual is required to file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process. In other words, the failure of an employee to file a pre-hearing written answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing, does not excuse the employer of its duty to prove the employee’s incompetence or misconduct, and where the employee fails to appear at the hearing, by holding the hearing in absentia, before making a determination as to guilt and then, if the accused is found guilty, imposing an appropriate disciplinary sanction. 

[2] The opportunity to cross-examine an adverse witness is guaranteed by statute in situations where a public agency is obliged to hold an adjudicatory hearing (see State Administrative Procedure Act §§ 102 [3]; 306 [3]). A hearing is not required under the minimum requirements set by Education Law §6444(5)(b) (see Matter of Doe v Skidmore Coll., 152 AD3d at 934), rendering the protections of the State Administrative Procedure Act inapplicable (see Matter of Gruen v Chase, 215 AD2d at 481; Matter of Mary M. v Clark, 100 AD2d at 43).


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