Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances

Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances
Siciliano v Safir, 259 AD2d 366

Matthew Siciliano, a New York City police officer, was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving [the] Department’s requirements for order, authority and discipline.” It ruled that the department’s determination to dismiss Siciliano is entitled to “great leeway.” Commenting that the penalty imposed did not shock its sense of fairness, the Court dismissed Siciliano’s appeal.
NYPPL

Designation of the hearing officer in an administrative disciplinary action

Designation of the hearing officer in an administrative disciplinary action
Stein v Rockland Co., 259 AD2d 552

William J. Stein was terminated from his position with the Rockland County Highway Department after he was found guilty of striking another employee. However, during the second day of hearing Stein had protested “the lack of a proper, written designation of the hearing officer” as required by Civil Service Law Section 75(2). Stein argued that omission meant that the hearing officer did not have jurisdiction to hear testimony in the matter.

According to case law, “in the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee” (Wiggins v Board of Educ. of City of New York, 60 NY2d 385).

The Highway Superintendent provided the hearing officer with a “new written designation,” and the hearing continued. However, the hearing officer “specifically stated in his recommendations that he credited the testimony of the two witnesses who testified on the first day of the hearing.

This, said the Appellate Division meant that the hearing officer’s report was “fatally defective.” The Appellate Division annulled the determination and remitted the matter to the county “for a new hearing and determination with respect to the charges.”

In addition, the Appellate Division said that the determination had to be annulled because the Highway Superintendent should have disqualified himself from making the final determination because of his personal involvement in the case.

The Superintendent was present when the incident leading to disciplinary action against Stein occurred and he made a statement as to what he heard and saw. Furthermore, he conducted the initial investigation, preferred the charges against the Stein, and appointed the hearing officer.

Such “personal involvement in the case,” said the Court, required the Superintendent to disqualify himself from reviewing the recommendation of the hearing officer and acting on any of the charges.
NYPPL

Summary dismissal during a disciplinary probation period

Summary dismissal during a disciplinary probation period
Williams v NYSOMH, 259 AD2d 623

Disciplinary charges were filed against Henry Williams, an employee of the New York State Office of Mental Health, alleging that he was guilty of excessive absenteeism.

The disciplinary action was settled when Williams agreed to serve a disciplinary probation period during which period he could be terminated “without recourse to Article 33 of the State-CSEA Agreement [a negotiated disciplinary grievance procedure] or any other provision of law.”

Williams was absent from work seven times during the six-month period following the execution of the settlement agreement. The department terminated him and he commenced an Article 78 proceeded seeking reinstatement to his former position. The Appellate Division dismissed Williams’ petition, commenting that “a probationary employee may be terminated without a hearing and without a statement of reasons provided that the termination is not in bad faith, or for unconstitutional or illegal reasons.” Further, the decision notes, Williams had the burden of proving that his dismissal was based on bad faith or unlawful conduct.

However, the specific terms of a disciplinary settlement could prove critical if the employee is terminated for his or her alleged failure to satisfy the terms of his or her disciplinary probation.

In Taylor v Cass, 505 N.Y.S.2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, a state corrections officer, Tina Ramos, agreed to pay a $1,000 fine and be placed on disciplinary probation for one year in settlement of disciplinary charges filed against her alleging improper behavior while escorting a prisoner. She was subsequently observed carrying her weapon in a hospital examination room in violation of departmental rules. The Appellate Division sustained her termination without a hearing, finding that Ramos had violated the terms of her disciplinary probation (Ramos v Coombs, App Div, 237 AD2d 713).
NYPPL

Employee disciplined for alleged acts of misconduct that took place 20 years earlier

Employee disciplined for alleged acts of misconduct that took place 20 years earlier
DeMichele v Greenburgh CSD #7, 167 F.3d 784

Section 3020-a(1) of the New York State Education Law provides that “no charges ... shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.”*

In the DeMichele case, a teacher in the Greenburgh Central School District #7 was found guilty of having inappropriate sexual contact with female students in incidents occurring more than 20 years earlier. The Second Circuit U.S. Court of Appeals sustained the school board’s decision to dismiss the teacher, even though the teacher had not been convicted of any “criminal act.”

Following the same logic as New York State courts that have addressed similar issues involving statutes of limitation under various disciplinary provisions, the federal court observed that the law does not require the individual to be found guilty of a felony in a criminal court for disciplinary charges to be filed after the three-year statute of limitations has expired.

Rather, the law merely characterizes the nature of the allegation. The law says that if a Section 3020-a hearing officer or disciplinary panel finds an individual guilty of an act that fits the definition of a felony under relevant criminal statutes, then a penalty may be imposed even if the disciplinary charges were brought after the three-year statute of limitations has expired (see Re Board of Education of City School District of the City of New York, Opinions of the Commissioner of Education No. 11353.**

The 20-year-old sexual misconduct charges arose after a newspaper reported that Greenburgh #7 teacher Robert DeMichele had been restored to the payroll in 1996 after serving one and one-half year disciplinary suspension. The article noted that the suspension without pay was imposed as a penalty after DeMichele was found guilty of having inappropriate conduct with female students during the 1991-92 and 1992-93 academic years.

After the article appeared, two women contacted district officials and alleged that DeMichele had sexually abused or molested them when they had been students in the district decades earlier -- during the 1972-73 and 1974-75 school years.

There was no dispute that the district was unaware of these allegations prior to its receiving the February 1996 reports. On March 11, 1996, the district initiated a second Section 3020-a disciplinary action against DeMichele. The hearing officer found DeMichele guilty of all but one of seven specifications set out in the charges. As a result, DeMichele was dismissed. The disciplinary determination was reported to the press.

The hearing officers ruled that (1) each instance of misconduct alleged in the second disciplinary proceeding constituted a crime when committed and (2) Section 3020-a does not require that the misconduct actually be the subject of a criminal prosecution. Rather than appeal the hearing officer’s determination, DeMichele sued in federal district court claiming that the second disciplinary action violated his rights under 42 USC. Section 1983. He contended that his rights were violated because:

1. The district forced him to defend charges concerning events that occurred more than 20 years ago, which left him unable to defend himself in violation of his right to due process under the Fourteenth Amendment; and

2. He was deprived of a liberty interest without due process under the Fourteenth Amendment when the district’s prosecutor disclosed the results of the hearing to the media.

In an unpublished decision, a federal district court judge granted the district’s motion for summary judgment and thus dismissed DeMichele’s petition without a hearing on the merits of the complaint. The Circuit Court of Appeals affirmed the lower court’s decision.

The Circuit Court said that to show a violation of due process as a result of delay in a hearing, New York State law requires the subject of an administrative disciplinary proceeding demonstrate that delay in initiating proceedings caused “actual prejudice” to his or her ability to defend against the charges. The court suggested that if the school district had known about the 1970s allegations before 1996 but delayed proceeding with discipline, DeMichele might have been able to show that his ability to defend himself had been compromised.

The court also addressed DeMichele’s claim that the dissemination to the media of the results of his second disciplinary hearing stigmatized him and wrongfully deprived him of his liberty interest under the Fourteenth Amendment. The court noted that this argument rested on the assumption that the results of the disciplinary proceeding were not a matter of public record, but instead were part of his “employment history” which could not be released under New York’s Freedom of Information Law, [Public Officers Law, Article 6, (“FOIL”)].

However, the decision noted that New York courts have found that the disposition of misconduct charges does not constitute part of an employee’s “employment history” as that phrase is used in FOIL, citing LaRocca v. Board of Educ. of Jericho Union Free School District, 632 N.Y.S.2d 576. The Circuit Court ruled that under the circumstances, the dissemination of the background and result of the first disciplinary hearing to the press did not deprived DeMichele of any liberty interest and dismissed the appeal.

* Section 75 of the Civil Service Law, a statutory disciplinary procedure covering employees in the classified service, also provides that there is no statute of limitations with respect to bringing disciplinary action against an individual where the charges of incompetency or misconduct “constitute a crime.”

** Section 3020-a(1) of the Education Law also requires that disciplinary charges be filed “during the period between the actual opening and closing of the school year” during which the employee is normally required to serve.
NYPPL

Potential conflict of interest between official duties and private business should be eliminated by appointing authority

Potential conflict of interest between official duties and private business should be eliminated by appointing authority
Informal opinion of the Attorney General 98-39

A part-time village police officer also conducted a towing business. When asked if the officer’s towing business could be included on the village police force’s list of towing companies, the Attorney General said it could be listed, “provided the village takes appropriate steps to eliminate any potential conflicts of interests.”

The Attorney General said that an appearance of impropriety would be created if the police officer’s towing service were called when that officer is at the scene of an accident. Further, a conflict of interest would arise if village police officers recommended their colleagues’ business to individuals in need of towing services rather than resort to the list.
NYPPL