Subject to certain exceptions with respect permanent employees serving a probationary period,* conducting administrative disciplinary hearings of [1] an employee of the State, as the employer, [2] an employee of a political subdivision of the State and [3] employees of other employers subject to the provisions of the Civil Service Law holding a position subject to the provisions of §75 of the Civil Service Law, §3020-a of the Education Law or a similar law, rule or regulation, or a relevant provision of a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, is a condition precedent to imposing an authorized penalty on an individual found guilty of such disciplinary charges, in whole or in part, including the termination of the individual from the position or setting a lesser penalty.**
§75 of the Civil Service Law provides, in pertinent part, as follows:
§75. Removal and other disciplinary action. 1. Removal and other disciplinary action. A person described in paragraph (a) or paragraph (b), or paragraph (c), or paragraph (d), or paragraph (e) of this subdivision shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.
In contrast, an employee served with disciplinary charges pursuant to §3020-a of the Education Law is required to notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on such charges.***
§3020-a[2]f of the Education Law provides, in pertinent part, as follows:
f. The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing. Where an employee requests a hearing in the manner provided for by this section, the clerk or secretary of the board shall, within three working days of receipt of the employee's notice or request for a hearing, notify the commissioner [of education] of the need for a hearing. If the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed in accordance with subdivision four of this section.
§3020-a[3] of the Education Law, in pertinent part, provides as follows:
3. Hearings. a. Notice of hearing. Upon receipt of a request for a hearing in accordance with subdivision two of this section, the commissioner [of education] shall forthwith notify the American Arbitration Association (hereinafter "association") of the need for a hearing and shall request the association to provide to the commissioner [of education] forthwith a list of names of persons chosen by the association from the association's panel of labor arbitrators to potentially serve as hearing officers together with relevant biographical information on each arbitrator. Upon receipt of said list and biographical information, the commissioner [of education] shall forthwith send a copy of both simultaneously to the employing board and the employee. The commissioner [of education] shall also simultaneously notify both the employing board and the employee of each potential hearing officer's record in the last five cases of commencing and completing hearings within the time periods prescribed in this section.
* In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees in the Classified Service 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.”
** Employment has been held to be "property" within the meaning of the due process clause of the Constitution of the United States and where the appointing authority serves disciplinary charges on an individual which may result in the termination of the individual's employment, the affected employee is entitled to due process of law. Further, "Due process requires that the * * * hearing be open to the press and public" [See Fitzgerald v. Hampton, 467 F. 2d 755, 766].
*** N.B. §3020-a[2]d of the Education Law provides as follows: The employee shall be terminated without a hearing, as provided for in this section, upon conviction of a sex offense, as defined in subparagraph two of paragraph b of subdivision seven-a of section three hundred five of this chapter. To the extent this section applies to an employee acting as a school administrator or supervisor, as defined in subparagraph three of paragraph b of subdivision seven-b of section three hundred five of this chapter, such employee shall be terminated without a hearing, as provided for in this section, upon conviction of a felony offense defined in subparagraph two of paragraph b of subdivision seven-b of section three hundred five of this chapter. [Emphasis supplied.]
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