July 30, 2018

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another


Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another
Matter of Stukes v City of White Plains, 2018 NY Slip Op 05474, Appellate Division, Second Department

The Executive Director of the Commission [Director] initiated disciplinary charges against his subordinate, an Assistant Director [Assistant] alleging that Assistant had violated policies prohibiting workplace violence following the Assistant's having had an altercation with Director at the workplace. After a hearing before a hearing officer, the hearing officer found Assistant guilty of  "13 of the factual specifications alleged in the charges" served on Assistant and recommended termination of Assistant from his employment with the Commission.

Director disqualified himself from reviewing the hearing officer's recommendations and making a final determination in consideration of the fact that he had preferred the charges against Assistant and designated the Chair of the Commission [Chair] to act in his stead. The Chair adopted the findings of the hearing officer and imposed the recommended penalty of termination of Assistant's employment.

Subsequently Assistant initiated a CPLR Article 78 proceeding seeking to annul the Chair's determination, contending that Chair "was not a duly qualified individual to whom [Director] could properly delegate the power to review the hearing officer's recommendations and make a final determination." Supreme Court found the delegation of the authority to make the challenged decisions  from Director to Chair to be proper, granted the City of White Plain's motion to dismiss Assistant's petition and dismissed the proceeding. Assistant appealed.

The Appellate Division commenced its review of Assistant's appeal by observing that "Civil Service Law §75(2) provides that where, as here, an officer having the power to remove an employee who is the subject of disciplinary proceedings designates someone else to conduct a hearing, the matter shall be referred back to that officer or body for review and decision."

However, said the Appellate Division, although as a general rule the authority to make the final determination as to the charged employee's status may not be delegated, "courts have recognized that the statutory command must yield to an employee's right to a fair and impartial hearing when such an official is personally involved in the proceedings by preferring the charges at issue and testifying at the hearing, or otherwise involving himself or herself extensively in the proceedings."

In the words of the court, "In such circumstances, such an official acts improperly when he or she also renders the final determination." Citing Matter of McComb v Reasoner, 29 AD3d 795, the Appellate Division noted that the Court of Appeals has interpreted Civil Service Law §72(2)  to "require[ ] that the power to discipline be delegated, if necessary, within the governmental department's chain of command" and that the Court of Appeals has further interpreted Civil Service Law §72(2) to:

1. require that the power to discipline be delegated, if necessary, within the governmental department's chain of command (see Matter of Gomez v Stout, 13 NY3d 182); and

2. whether a particular delegation will fall within the affected department's chain of command, and, hence, is permissible appears to turn upon whether the body or official to whom review power is delegated possesses either supervisory authority over the employee at issue or administrative responsibility over the affected department and its personnel" (see Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210).

Giving Assistant "the benefit of every favorable inference," the Appellate Division concluded that Supreme Court's determination that the Chair's position with the Commission was within the affected department's chain of command and, thus, the delegation of authority from Director to the Chair was proper.

The decision is posted on the Internet at:

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