July 23, 2020

Placing an employee on leave without pay upon the initiation of a disciplinary action against the employee


Civil Service Law §75.3-a, suspension pending determination of charges and penalties relating to police officers of the Police Department of the City of New  York [Department] served with disciplinary charges, provides that a New York City police officer may be placed on leave without pay for a maximum of 30 days while awaiting a hearing on the disciplinary charges. Thereafter the police officer's name must be restored to full pay status on the payroll. 

However, in the event of a delay in the disciplinary hearing beyond the 30-day maximum is occasioned solely by the police officer's own conduct, the police officer may be placed on, or continued on, leave with out pay or again removed from the payroll, as the case may be, until such time as the appointing authority is otherwise able to go forward with disciplinary hearing. 

In contrast, where the appointing authority is solely responsible for the delay, or the parties are equally responsible for the delay, the police officer's name is to be restored to the payroll after the 30-day period of leave without pay authorized by §75.3-a has been exhausted.

In this action the Appellate Division said it agreed with the Department that the police officer [Petitioner] was not entitled to reinstatement to the payroll, or eligible for back pay, for any time he was taken off the payroll in excess of 30 days, because Petitioner was solely responsible for the delay in the disciplinary hearing going forward. 

The Appellate Division, citing Gerber v New York City Housing Authority, 42 NY2d 162, explained that because Petitioner failed to take certain necessary action "the entire period of delay in holding the [disciplinary] hearing resulted from his dilatory tactics."

In the alternative, in the event an individual served with disciplinary charges fails or refuses to participate in the disciplinary hearing without good cause, the appointing authority may elect to proceed to conduct the disciplinary hearing as scheduled "in absentia."


It is well-settled that should the employee fail to appear at the disciplinary hearing as scheduled, the appointing authority may elect to proceed with the disciplinary action and actually hold a hearing in absentia rather then merely proceed to impose a penalty on the individual simply because of the employee's failure to appear as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. 

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that in the event the employee fails to appear at the disciplinary hearing as scheduled, the appointing authority make a diligent effort to contact the employee to inform him that the scheduled disciplinary hearing would take place even if he did not participate and determine if the individual had a reasonable explanation for his failure to appear at the disciplinary hearing as schedule.. 

Further, the charging party must prove its case by presenting substantial evidence of the employee’s incompetence or misconduct in the course of a disciplinary hearing held in absentia.

On the other hand, there is case law holding that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority or its representative and make a final, binding determination and award. The appointing authority had boycotted a scheduled arbitration hearing because it believed that the employee was not entitled to submit the matter to arbitration. In Matter of Hall, 235 AD2d 75, the Appellate Division sustained the arbitrator’s award in favor of the employee.

The instant decision is posted on the Internet at: 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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 in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.