Nolo Contendere is Latin for "I will not contest it."
A
decision of the Commissioner of Education involving "student
discipline" in which the Commissioner considered a plea of “no contest” is Decisions of the
Commissioner 16,385, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html. Here the Commissioner noted "no contest” pleas in student disciplinary proceedings ... have
been upheld as valid when entered into knowingly and voluntarily."
Other decisions in which the Commissioner considered a plea of “no contest” include: Decision No. 16,101; Decision No. 15,841; Decision No. 15,122; Decision No. 14,529; Decision No. 14,305; and Decision No. 14,217
With respect to "settling an employee disciplinary action," the decision in Taylor v Cass, 505 NY2d 929, indicates that the terms and conditions of such a settlement authorizing the termination of the employee without notice and hearing are strictly construed.
The stipulation of settlement at issue provided that Taylor would be terminated "without another hearing" if, during his disciplinary probationary period, Taylor's job performance, in the opinion of his supervisor, was "adversely affected" by his "consumption of alcohol".
Served with a "notice of infraction" of the terms of his disciplinary probation, Taylor was summarily terminated from his position for "failing to give a fair day's work" and "sleeping during [the] scheduled working hours" without a disciplinary hearing.
Significantly, the letter of termination sent to Taylor failed to state that intoxication was the reason for his dismissal. The decision by the Court of Appeals indicated that Taylor was terminated "solely for the reasons set forth in the notice of infraction", i.e., "failing to give a fair day's work" and "sleeping during [his] scheduled working hours".
In the words of the Court of Appeals, "Under the circumstances, [Taylor] should not have been dismissed without a hearing...."
It has been suggested that in the event an employee served with charges in an administrative disciplinary action merely enters a plea of nolo contendere in contrast to entering into a formal agreement of "settlement" of the disciplinary action, the appointing authority should proceed with the disciplinary action and conduct it as a disciplinary hearing being held in absentia.
Indeed, Section 75.2 of the Civil Service Law, in pertinent part, provides “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.”
In other words, it appears the failure of an employee to offer an
explanation or a defense does not absolve the employer of its obligation
to prove the charges of incompetency, and, or, misconduct served on an
employee in an administrative disciplinary proceeding before imposing disciplinary
sanctions absent the parties mutually agreeing to "settling the matter".
As to conducting disciplinary hearings in absentia, in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819, the Appellate Division held “due process does not require that [the charged individual] 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 the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if the individual fails to appear and participate.
In contrast, an accused who had pleaded guilty to a criminal charge, or who had pleaded nolo contentere to the criminal charge, is deemed to "having been found guilty" of that criminal charge. However, although a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.
Click HERE to access a LawBlog focusing on Nolo Contendere posted on the Internet.