ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

February 23, 2021

Extensive personal involvement by the appointing authority in a §75 disciplinary proceeding requires the appointing authority to recuse himself or herself from the decision-making process

The Appointing Authority [Respondent] in this litigation filed nine charges against a staff member  [Petitioner] pursuant to Civil Service Law §75 alleging, among other things, that Petitioner had improperly used her position to her financial benefit.

The §75 Hearing Officer found Petitioner guilty if eight of the nine disciplinary charges filed against her and, with respect to the penalty to be imposed, recommended that Petitioner be terminated from her position. The Respondent accepted the Hearing Officer's findings and recommendation and dismissed Petitioner from her position with the agency. Petitioner then commenced a CPLR Article 78 proceeding challenging the Respondent's terminating her employment.

Noting that the record before it indicated that the Respondent had initiated the charges against Petitioner, appointed the §75 Hearing Officer and had testified as a witness at the §75 disciplinary hearing, the Appellate Division, citing Matter of Ashe v Town Bd. of the Town of Crown Point, N.Y., 97 AD3d 1022, opined that in view of Respondent's "extensive personal involvement" she should have disqualified herself from the decision-making aspects of the disciplinary action at large.

In the words of the court, "Although involvement in the disciplinary process does not automatically require recusal ... individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges."

Accordingly, the Appellate Division annulled the Respondent's decision and remanded the matter "for further proceedings not inconsistent with this Court's decision."

A similar situation underlies another Appellate Division decision, summarized in NYPPL at https://publicpersonnellaw.blogspot.com/2010/07/individual-terminated-based-on.html. 

The County Board [Board] filed disciplinary charges against one its employees [Supervisor] alleging misconduct and incompetence based on complaints of sexual harassment filed by a number of women supervised by Supervisor.

Found guilty of the charges, the Board dismissed Supervisor from his position. The Appellate Division, however, annulled the determination. The court said that one of the Board members had “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision.

The Appellate Division returned the matter to the Board for a re-determination, without the participation of the errant Board Member.

Click HERE  to access the Appellate Division's instant decision.

 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger 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.
New York Public Personnel Law. Email: publications@nycap.rr.com