The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing
Matter of Martin v Board of Trustees of the Vil. of Pelham Manor, 2011 NY Slip Op 06106, Appellate Division, Second Department

The Village of Pelham Manor found Robert Manor, a Village police officer guilty of a number disciplinary charges filed against him including excessive use of paid sick leave and insubordination. The penalty imposed, termination.
 

Manor appealed, contending that the Village’s determination was not supported by substantial evidence in the record. The Appellate Division disagreed, sustaining the Village’s findings and the penalty it imposed.

The court explained that the standard of review in an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence. In contrast, the Appellate Division said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which evidence to accept or reject.”

Accordingly, where there is conflicting evidence and, or, testimony, it is the administrative tribunal, not the court, that weights the evidence and the determines credibility of the witnesses testifying at the hearing.

As to the penalty imposed, dismissal from his position, the Appellate Division, applying the so-called Pell test {[Pell v Board of Education, 34 NY2d 222], held that “the penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” 

An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct

An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct

Umlauf v Safir, 286 AD2d 267

Clearly, an employee may be subjected to disciplinary action for his or her off-duty misconduct that adversely affects his or her employer. If the employee is found guilty, any one of a number of penalties, including termination, may be imposed. The Umlauf case raises a related issue: what action, if any, may the appointing officer take in consideration of an employee's “pre-employment” misconduct.

In this instance the employee sued the City of New York following the Police Commissioner's dismissing him from his position without a hearing. Although the employee's petition seeking to annul the Commissioner's action was dismissed by State Supreme Court Justice William Davis, the Appellate Division reversed Justice Davis' decision “on the law.”

The Appellate Division ordered Commissioner Safir to reinstate the individual to his former position. If the Commissioner wished have the employee terminated, said the court, Safir would have to submit a request for such action in accordance with the provisions of Civil Service Law Section 50.4.

Section 50.4 provides for the disqualification of applicants or eligibles by the state civil department or responsible municipal civil service commission for a variety of reasons. The court's decision indicates that the relevant provision in this case is Section 50.4(d). Paragraph (d) authorizes the disqualification of an individual who has been guilty of a crime.

Section 50.4 further provides that “[n]o person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The court found that Safir had terminated the employee because of the individual's pre-employment conduct. This, said the Appellate Division, was improper -- an appointing authority does not have the authority to take such unilateral action. The court pointed out that in this instance Section 50.4 of the Civil Service Law vests the authority to disqualify or remove the individual in the head of New York City's Department of Citywide Administrative Services, not the head of a City department or agency.

Further, the individual may neither be disqualified nor terminated, as the case may be, unless he or she is provided with a written explanation of the reasons for the proposed action and given an opportunity to submit an explanation and facts opposing such action prior to his or her disqualification for, or termination of, employment.

Where the appointing authority seeks to have an individual disqualified or employee terminated for one or more reasons set out in Section 50.4, it should so advise the State Department of Civil Service or the responsible municipal civil service commission, as the case may be, setting out its reasons for seeking the disqualification or termination of the individual.

Is the individual who is to be disqualified or terminated pursuant to Section 50.4 entitled to a hearing before the department or municipal commission? In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals ruled that no “Section 50.4 hearing” is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

Another element in this case -- the employee had also claimed that he was entitled to a name-clearing hearing. The Appellate Division, citing Swinton v Safir, 93 NY2d 758, agreed. The court said that the worker “has sufficiently raised the issues of the partial falsity and overall characterization of information included in his personnel file, the dissemination of such information, both past and future, as well as the presence of 'stigma plus' -- in this case governmental defamatory action in conjunction with loss of employment” 

Discontinuing General Municipal Law Section 207-c benefits

Discontinuing General Municipal Law Section 207-c benefits

Dacey v Dutchess County, 121 AD2d 536

An individual is receiving benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law and is absent on disability leave. While on disability leave and while still receiving benefits, the individual served with disciplinary charges alleging off-duty misconduct that occurred while he or she was on such leave. This was the fact pattern underlying a question raised by a reader. The question: What happens to the Section 207-c benefits if the individual is found guilty following a disciplinary hearing and the penalty imposed is termination?

The Appellate Division's decision in the Dacey case indicates that Section 207-a and Section 207-c benefits cease upon the termination of the employee.

Dacey, a Dutchess County corrections officer, was injured in the line of duty and was granted disability benefits pursuant to Section 207-c. While on disability leave she was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Found guilty of the charges, she was terminated. The County discontinued her Section 207-c benefits when she was dismissed. Claiming that she could not be deprived of her disability benefits solely on the basis of her termination following disciplinary action, Dacey sued.

The Appellate Division said that Section 207-c of the General Municipal Law must be read together with Section 75 of the Civil Service Law. Its conclusion: Dacey was entitled to receive her Section 207-c benefits only until she was terminated following her being found guilty of misconduct in the disciplinary action.

May the employer discontinue the payment of Section 207-a or Section 207-c whenever the employee is lawfully removed from the payroll rather than solely upon his or her “termination of employment” such as the 30-day suspension without pay authorized by Civil Service Law Section 75 or pursuant to the terms of a collective bargaining agreement?

Noting that prior to a final determination in the disciplinary action, Section 207-c benefits could not be suspended without a prior evidentiary hearing, the Appellate Division advised that such benefits had to be continued until a “final determination ... which would justify her removal from the payroll” was made. However, this does not suggest that the employee subject to disciplinary action must be continued in Section 207-a or 207-c status pending a final determination in the administrative disciplinary procedure if there is some lawful basis to otherwise discontinue such payments.

It would seem that the courts would not hold the payment of Section 207-a and Section 207-c benefits absolute and agree that they may be discontinued for the duration of any Section 75 or contract disciplinary action involving a lawful “suspension without pay” such as the 30-day period of suspension pursuant to Section 75.3 pending a determination of disciplinary charges; when the individual would otherwise be removed from the payroll such as approval of the accused individual's request to adjourn a scheduled hearing date; or as a result of the imposition of a disciplinary penalty of a suspension without pay for a specified period.