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June 27, 2019

Court remands appeal to the employer "only for the development of appropriate written factual findings," not for a new evidentiary disciplinary hearing


In this somewhat convoluted litigation, the county's personnel officer [Petitioner] was suspended by the County Board of Supervisors [Respondent] with pay and thereafter Respondent served Petitioner with charges seeking to remove her the position for cause pursuant to §24.1 of the Civil Service Law.  §24.1 essentially provides that the officer or body having the power of appointment of the members of a municipal civil service commission or a personnel officer may at any time remove any such member or personnel officer for cause, after a public hearing, and appoint his successor for the unexpired term.*

Ultimately Respondent, following a hearing, determined that cause for Petitioner's removal existed and terminate her. Petitioner then initiated a CPLR Article 78 proceeding seeking to annul Respondent's determination.

Supreme Court transferred the matter to the Appellate Division. The Appellate Division concluded that it could not conduct a meaningful review of Respondent's determination because Respondent "did not make any findings of fact, despite having heard testimony from multiple witnesses and considering the admitted documentary evidence." The Appellate Division then "withheld decision" and remitted the matter for Respondent to develop appropriate factual findings.

Contending that this action by the Appellate Division had "essentially nullified" Respondent's determination with respect to her termination from her position, Petitioner demanded that Respondent reinstate her to her former position with back pay and benefits. When Respondent refused, Petitioner commenced a second CPLR Article 78 proceeding seeking reinstatement and back pay.

Supreme Court treated this second petition as one in the nature of mandamus ** and dismissed the petition, observing that Petitioner had failed to establish that she had a clear legal right to the relief sought. Petitioner then appealed this ruling as well but the Appellate Division sustained the Supreme Court's ruling.

The court then explained that Petitioner's demanded that she be reinstated to her position of personnel officer was based on an incorrect interpretation of its prior decision as that decision did not remit the matter to Respondent for a new evidentiary hearing, but, rather, "only for the development of appropriate written factual findings." This ruling by the Appellate Division is posted on the Internet, and its URL is set out at Footnote [3] below.

Respondent subsequently issued findings of fact and conclusions of law in support of its determination to remove petitioner from her position. Petitioner commenced another proceeding challenging the Respondent's response to the court's directive to make findings of fact. The Appellate Division's ruling is this regard is also posted on the Internet, and its URL is set out at Footnote [4] below.

Picking up at the point where Respondent issued findings of fact and conclusions of law in support of its determination, finding that Petitioner withheld relevant information and material from the County's labor attorney and submitted them to the Appellate Division, addressing the status of the several Article 78 actions initiated by Petitioner, explained that "Because we withheld decision, the [initial] matter was still pending before this Court and it was unnecessary for any party to commence a new proceeding. Nevertheless, as Petitioner has commenced this proceeding and moved to withdraw her petition in the 2015 proceeding, we now address the merits of Respondent's determination.

The Appellate Division concluded that Respondent's determination to remove Petitioner from office is supported by substantial evidence. Citing Civil Service Law §24.1 provides that "[t]he officer or body having the power of appointment of . . . a personnel officer may at any time remove any such . . . personnel officer for cause, after a public hearing."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the court opined that when reviewing an administrative determination rendered after a hearing that is required by law, the court's standard is whether the determination "is, on the entire record, supported by substantial evidence" which is a "minimal standard ... demand[ing] only that a given inference is reasonable and plausible, not necessarily the most probable." Thus the court may not substitute its judgment for that of the panel nor weigh the evidence presented, beyond assuring that there is substantial evidence.

The record establishes that two former employees commenced proceedings against the Respondent alleging that they were improperly terminated. An issue raised in each of those proceedings was whether Petitioner was interim or acting director of the County health department or held herself out as such. When defending the County in those proceedings, the Respondent and Petitioner denied these allegations.

According to the attorney representing the Respondent, Petitioner had affirmed that she had not been appointed to the position either officially or unofficially, that she had never held herself out as such and that she was not in any way acting or interim director of the health department. The attorney also indicated that she expected Petitioner to provide any documents in the Respondent's possession that were relevant to any issues in the proceedings.

The Appellate Division noted that the record contains numerous documents indicating that Petitioner held herself out as interim director of the health department and that Petitioner admitted in her testimony that at times she had done so. Although Petitioner provided reasons for her actions and asserted that the attorney was aware of this information during the prior proceedings, Respondent specifically discounted Petitioner's credibility and truthfulness as a witness. Moreover, even if the attorney obtained these documents at some point from other sources, the record indicated that Petitioner had not provided them to the attorney.

Accordingly, said the court, substantial evidence supports Respondent's determination to remove Petitioner for cause because she withheld relevant information and materials from the attorney, which the attorney should have been able to review to determine whether they were necessary or important to the defense of matters being litigated matters.

The Appellate Division also reject Petitioner's argument that Respondent's factual findings are defective due to not being signed by all members of the hearing panel. No statute or regulation requires a unanimous vote of a hearing panel to remove a public official pursuant to Civil Service Law §24.1 nor that all of the participating panel members sign a determination said the court, concluding that the signatures of five of the eight original participating panel members constituted sufficient approval of the factual findings.

As to the penalty imposed, termination, the Appellate Division indicated that "A penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," citing O'Connor v Cutting, 166 AD3d 1099. Further, said the court, the record reflects that the attorney relied primarily on Petitioner for correct information and evidence in defending the Respondent in the two proceedings, as she typically did in all labor proceedings, due to Petitioner's position as personnel officer. Notwithstanding the favorable decisions that the Respondent obtained in those two matters, the Appellate Division pointed out that Petitioner signed and submitted affidavits that contained false information, primarily because she failed to provide the attorney with relevant documents and accurate information.

Finally, the court pointed out that Civil Service Law §24 does not provide any disciplinary remedy other than removal of the incumbent from the position in contrast to Civil Service Law §75.3 which provides a range of penalties running from "a reprimand" to dismissal from the position. However, said the Appellate Division, even were imposing a lesser penalty possible, "it is not proper to substitute our judgment for that of [Respondent]" absent its finding that the  penalty of termination was shocking or disproportionate under the circumstances, i.e., the penalty imposed violated so-called "Pell Doctrine," Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222.

* §24.2, in pertinent part, provides that "A municipal civil service commissioner or personnel officer may be removed by the state civil service commission for incompetency, inefficiency, neglect of duty, misconduct or violation of the provisions of this chapter or of the rules established thereunder ...."

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority], requiring the target of the writ to explain the authority for the action challenged. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05031.htm 

and

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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