May 06, 2018

The anatomy of an administrative disciplinary decision


The anatomy of an administrative disciplinary decision
Marentette v City of Canandaigua,, 2018 NY Slip Op 01764, Appellate Division, Fourth Department

The §75 disciplinary Hearing Officer found the Fire Chief [Chief] of the City of Canandaigua guilty acts of misconduct, having committed acts of insubordination by repeatedly violated the directive of his superior, making unauthorized entries on his subordinates' time sheets, and acts of incompetence by authorizing the expenditure of public funds on several occasions in violation of the City's procurement policies.

The Hearing Officer recommended that the Chief be demoted. The appointing authority determined that termination was warranted given the gravity of the misconduct, the Chiefs "disciplinary record," earlier "unsuccessful attempts at remediation," and the loss of trust in the Chief.

In response to the Chief's appeal of the decision of the appointing authority, the Appellate Division, sustained the actions of the disciplinary action Hearing Officer and the appointing authority and:

1. Rejected the Chief's argument that preponderance of the evidence is the applicable evidentiary standard in this case explaining that "It is well established that substantial evidence is generally the applicable evidentiary standard for disciplinary matters involving public employees under Civil Service Law §75, and that due process requires application of the preponderance of the evidence standard only "when the penalty of dismissal is accompanied by some added stigma." Here, said the court, there was nothing in the record suggesting that stigma has resulted from the Chief's termination in that he has not been "[effectively] prohibited from obtaining future . . . employment [as a firefighter or an officer of a fire department], or that he is subjected to a public registry of any sort";

2. Ruled that the determination that the Chief committed acts of insubordination and incompetence was supported by substantial evidence; i.e., by "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.";

3. Said that the Chief's exculpatory explanations for his conduct raised an issue of credibility that the Hearing Officer was entitled to resolve against him.;

4. Was unpersuaded by the Chief's contention that the termination of his employment was unjustified under the circumstances, indicating that the court's review of the penalty imposed by the appointing authority "is extremely limited" does not include "any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."; and

5. Citing Kelly v Safir, 96 NY2d 32, [rearg denied 96 NY2d 854], concluded that the penalty of termination was "not so disproportionate to the offense[s] as to be shocking to one's sense of fairness"  and thus "did not constitute an abuse of discretion as a matter of law ... particularly in light of [the Chief's] conduct underlying the charges and his history of disciplinary infractions during his tenure as Fire Chief."


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

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