The Plaintiff in this CPLR Article 78 proceeding was served with disciplinary charges pursuant to §75(2) of the Civil Service Law alleging he "caused himself to receive unauthorized overtime compensation and an unauthorized increase in salary for a pay period."
Although a §75 disciplinary hearing was conducted before
a duly designated hearing officer, the hearing officer failed to issue a report
of findings or make a recommendation with respect the disposition of the disciplinary charges filed against Plaintiff by the appointing authority. Notwithstanding
this defect in the disciplinary procedure,* the appointing authority terminated Plaintiff's
employment effective December 31, 2019.
In response to Plaintiff's challenge to the appointing authority's action, Supreme Court concluded that the Board's determination was not arbitrary and transferred the matter to the Appellate Division.**
The Appellate, noting that it is undisputed that "the hearing officer did not issue a report with findings or recommendations" before the appointing authority made its determination to terminate Plaintiff 's employment, concluded that any action taken by the appointing authority was "unavoidably ... arbitrary", citing Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385.
Accordingly, the Appellate Division held that "under the circumstances, the [Petitioner] is entitled to be reinstated to his position and to back pay and benefits, even if the proceedings against him eventually lead to the termination of his employment."
The court granted the Plaintiff's Article 78 petition, annulled the determination of the appointing authority, reinstate the Plaintiff to his former position, with full back pay and benefits, and "remitted the matter to the [appointing authority] for a new hearing and a new determination with respect to the charges."
* §75.2 of the Civil Service Law, in pertinent part, provides "In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision."
** See CPLR §7804(g).
Click HERE to access the Appellate Division's decision posted on the Internet.