Preparing an adequate defense to disciplinary action requires sufficient notice of charges

Preparing an adequate defense to disciplinary action requires sufficient notice of charges

Gustafeste v NYC Dept. of Sanitation, 282 A.D.2d 398

When an employee is served with disciplinary charges, he or she is entitled to be given information concerning such charges sufficient to permit his or her adequately preparing his or her defense [Pachucki v Walters, 56 AD2d 677]. Further, case law has long held that an employee may not be found guilty of acts of misconduct or incompetence that have not been charged [Shuster v Humphrey, 156 NY 231].

The Gustafeste case focused on the issue of providing the employee with sufficient information concerning the charges in order for him or her to be able to prepare his or her defense so that it cannot rightfully be claimed that the individual was found guilty acts or omissions that were not charged.

Joseph Gustafeste, a New York City Department of Sanitation employee, was found guilty of misconduct following his involvement in an accident while operating a department motor vehicle. The penalty imposed: a 30-day suspension without pay.

Gustafeste appealed, contending that the charges of misconduct filed against him by the department did not specifically charge him with having “caused the accident by negligently losing control of his vehicle.” Accordingly, he argued, he had not been given an adequate opportunity to prepare his defense against this allegation.

The Appellate Division decided that it was clear from the specifications set out in the charges filed against him that Gustafeste was being charged with “negligently operating his vehicle.” This, said the court, meant that Gustafeste had been given sufficient notice of the charge of which he was found guilty so as to enable him to adequately prepare his defense.

As to the penalty imposed – a 30-day suspension without pay -- the Appellate Division ruled that for the misconduct proved against [Gustafeste], some of which involved violations of Department of Sanitation safety rules, [such a penalty] does not shock the judicial conscience and accordingly may not be disturbed.”

Sometimes an employee will demand “a bill of particulars” requiring the employer to set out the charges and specifications filed against the individual in greater detail.

Although Education Law Section 3020-a 3 c(iii)(C) indicates that an administrator or teacher has the right to demand a “bill of particulars” concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law. In some instances the disciplinary grievance procedure set out in a collective bargaining agreement allows the employee to demand a “bill of particulars.”

Terminated probationer’s right to due process protected by the availability of a meaningful “post-deprivation” remedy

Terminated probationer’s right to due process protected by the availability of a meaningful “post-deprivation” remedy

Rivera v Community School District 9 [NYC], USDC SDNY, Justice Stein, [Not officially reported]

Anna Rivera, a probationary teacher employed by New York City's Community School District 9, was terminated.

Claiming that the district violated her right to due process rights by dismissing her without holding a pre-termination hearing and violated her First Amendment rights by terminating her in retaliation for filing a notice of claim against other employees, Rivera appealed.

Justice Stein ruled that:

1. Under New York State law, a probationary employee such as Rivera has no property interest in her job that would entitle her to due process rights; and

2. Although a probationary employee, Rivera does have a liberty interest in clearing her name from the stigma of accusations of dishonesty that entitles her to due process.

Justice Stein noted that Rivera was terminated because the superintendent of Community School District Nine concluded that Rivera cheated on standardized tests, pressured other teachers into cheating, and attempted to assault another teacher for refusing to cooperate in the cheating scheme. These allegations were disseminated to the public and repeated in letters to Rivera.

Rivera denied these charges. Because these accusations impugn Rivera's honesty, said Justice Stein, she has a liberty interest that is protected by the Due Process Clause. As to a remedy, the court said that Due Process Clause of the Fourteenth Amendment is not violated “so long as the state provides a meaningful post-deprivation remedy.”*

Was such a “post deprivation remedy” available to Rivera? Yes, said the court. New York's Article 78 [Article 78, Civil Practice Law and Rules] proceeding has been held to provide an adequate post-deprivation remedy in such situations.

* Courts have ruled that providing a probationary with a “name-clearing hearing” meets the requirements for a meaningful post-deprivation process.

Verification of an appeal to the Commissioner of Education

Verification of an appeal to the Commissioner of Education

Decisions of the Commissioner of Education 14,523

Frequently the rules for filing an administrative appeal require that the appeal be “verified” under oath by one or more of the parties filing the appeal. Failure to comply with such a requirement is often a fatal omission as the Booker decision by the Commissioner of Education indicates.*

The parents of Elizabeth Booker filed an appeal with the Commissioner alleging that the Baldwinsville Central School District “engaged in unlawful racial discrimination against their daughter.”

The verification of their appeal, however, was signed by Demetria Booker, an individual whom the Commissioner said was not a party to the appeal.

The Commissioner said that the appeal had to be rejected on procedural grounds alone, commenting that “[w]here a petition is not properly verified, it must be dismissed.”

* Section 275.5 of the Regulations of the Commissioner [8 NYCRR 275.5], requires that all pleadings in an appeal before the Commissioner be verified by the oath of at least one of the petitioners.