Name-clearing hearings typically are provided to probationary employees and others who lack the statutory due process protections of tenured employees* upon request. Such hearings, however, serve only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by the employer. Further, prevailing at a name-clearing hearing does not entitle the individual to reinstatement or to reemployment in his or her former position.
In an appeal to the Commissioner of Education the Plaintiff challenged a decision of a Board of Education [Board] denying his request for a name-clearing hearing.
Plaintiff alleged that the Board disseminated allegations about him based upon an investigation into one of its activities in which he was involved and claimed that he was entitled to a name-clearing hearing because he was “accused of misconduct” that impugned his reputation and integrity. Plaintiff also contended that there was a written document setting out such allegations and the allegations were referred to during a meeting of the Board. Plaintiff sought an admission by the District that it acted improperly and an apology.
The Board argued that the appeal must be dismissed on procedural grounds because [1] it was untimely and [2] was not properly served. With respect to the merits of Plaintiff's petition, the Board contended that [1] Plaintiff was not entitled to a name-clearing hearing and [2] the Commissioner lacks authority to direct a school district or its employees to admit to wrongdoing.
The Commissioner found that Plaintiff's petition was untimely served and must be dismissed. Citing citing 8 NYCRR 275.16, the Commissioner explained that "[a]n appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown". The Commissioner opined that Plaintiff failed to "identify any good cause for the delay."
Addressing the merits Plaintiff's appeal, the Commissioner said that "[e]ven if the appeal was not dismissed on procedural grounds, it would be dismissed on the merits". A public employee is entitled to a name-clearing hearing only in the event her or his employer creates and disseminates a false and defamatory impression about the employee in connection with the termination, citing Codd v. Velger, 429 US 624.
In response to Plaintiff's allegation that "district officers or employees made defamatory statements" concerning him at the Board meeting, the District contended that it did not “publicly disclose” any information about Plaintiff or Plaintiff's]termination" but during a “privilege of the floor” session of a Board meeting an individual who spoke “in [Plaintiff's] defense”, publicly disclosed certain information about the Plaintiff. Noting that Petitioner did not submit any evidence to the contrary, the Commissioner concluded that Petitioner's appeal must be dismissed on its merits.
* There is an exception to the general rule that employees are not entitled to a "pre-termination" hearing during their probationary period. In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”
Click HERE to access the Commissioner's decision posted on the Internet.