Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

OATH Index No. 559/13

An OATH Administrative Law Judge found a housekeeping aide guilty of [1] laying down on a clean stretcher in a patient area to make a phone call during work hours and [2] failing to complete his assigned cleaning duties.

However ALJ Faye Lewis dismissed charges that Aide abandoned his post, was discourteous, and did not comply with a directive to clean certain areas in a medical unit.

Taking into consideration employee’s prior disciplinary record, which included 30-day suspensions, ALJ Lewis recommended a 45-day suspension.

The case usually cited as authority for considering the employee's personnel record in recommending a disciplinary penalty is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470. Further, the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty. 

However, in the event the employee's personnel records will be considered in determining the disciplinary penalty, he or she must be advised of that fact and given an opportunity to explain or rebut anything in that record.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-559.pdf

Removal of a public officer from his or her position by operation of law

Removal of a public officer from his or her position by operation of law

Greene v McGuire, 683 F.2d 32

§30 of the Public Officers Law provides for the automatic removal of an individual from his or her public office under certain conditions.

A federal district court held that a police officer who was removed from his position following his being convicted of a felony in accordance with Public Officer Law §30.1(e) was entitled to an administrative hearing on the question of reinstatement following the reversal of the conviction

The 2nd Circuit Court of Appeals reversed, indicating that as the state law automatically results in dismissal upon conviction, refusal to provide an administrative hearing following the reversal of the former police officer’s conviction did not deprive the former employee of a property right or liberty interest protected by the 14th Amendment.

However, it should be noted that §30.1(e) provides in the event a public officer* is convicted of a “felony, or a crime involving a violation of his [or her] oath of office …. a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy.”

The statute further provides that “After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.

“The record of the hearing shall include the final judgment of the court which reversed or vacated such conviction and may also include the entire employment history of the applicant and any other submissions which may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction.

“Notwithstanding any law to the contrary, after review of such record, the appointing authority may, in its discretion, reappoint such non-elected official to his former office, or a similar office if his former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof;”

A similar principle** was applied in a case where although a principal was initially recommended for tenure, the new superintendent recommended his termination on the grounds that a change in leadership was required.

While there was still 120 days left to the principal’s probationary period, his contract of employment expired and he was terminated by the School Board.

It was held that the principal was not entitled to a termination hearing pursuant to §3020-a of the Education Law, nor did the earlier recommendation for tenure have any effect on the contract provision (See §1709, Education Law).

* A police officer is a public officer. Although all public officers are public employees, not all public employees are public officers.

** See Knight v. Wyandanch Union Free School District, affd. 56 NY2 628

An employee’s disability will not excuse his or her misconduct

An employee’s disability will not excuse his or her misconduct

2013 NY Slip Op 04703, Appellate Division, First Department

The employee [Employee] was served with disciplinary charges alleging misconduct. His defense: his conduct was involuntary because it was the result of illnesses, Tourette's Syndrome and an obsessive-compulsive disorder, from which he suffers, and thus does not constitute misconduct.

A Judicial Hearing Officer (JHO) found Employee guilty and that his misconduct was only partially attributable to these disorders. Based on the JHO’s findings, the appointing authority dismissed Employee from his position.

The Appellate Division, finding that “substantial evidence supports [the agency’s] determination that [Employee] engaged in the misconduct alleged, dismissed Employee’s appeal. The court said that Employee’s argument that his conduct “was involuntary because it was the result of illnesses …  and therefore does not constitute misconduct is unavailing.”

Noting that the JHO found that Employee's conduct was only partially attributable to the disorders he claimed to suffer, the Appellate Division said that “the law does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace,” citing Hazen v Hill Bettz and Nash, 92 AD3d 162, leave to appeal denied, 19 NY3d 812.

As to the penalty imposed, dismissal from his position, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, held that under the circumstances, the penalty of termination is not "so disproportionate as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04703.htm

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Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment

Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment

Anonymous v NYC Human Resources Administration, 154 A.D.2d 233.

In Anonymous v NYCHRA the Appellate Division considered the termination of a public employee because he allegedly made false statements on his application for public employment. The decision involves the inter-relationship and application of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.

Anonymous had been appointed in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."*

According to the ruling, Anonymous allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Anonymous'] termination."

Anonymous sued, contending that his termination was arbitrary and that his discharge was in violation of §296 of the Human Rights Law.

Anonymous had been convicted of two misdemeanors. However, he contended that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil Disabilities together with "the dispositions of his criminal cases along with his application."

Although New York courts have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Appellate Division believed that Anonymous "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."

 The court appeared troubled by the summary dismissal of Anonymous' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Anonymous] to retain his position after questioning." A second footnote indicated that the file of investigator originally involved in the case, whom Anonymous claimed told him that "there would be no further problems with his application [despite the inconsistency regarding his criminal record,] had been misplaced."

As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, §296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual has been convicted.

Additional protections against discrimination based on a criminal conviction are contained in §752 of the Corrections Law. §752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see §702, Correction Law]. Anonymous had obtained such a Certificate from a State court judge.

The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain or be eligible for public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**

Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of his or her conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [§703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, §4, State Constitution].

In the Anonymous case the Appellate Division said that the action taken against Anonymous by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law §702(2)(c)] and the court which saw fit to grant [Anonymous] a second chance at life."

This suggests that in a §50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct or an Executive Pardon in challenging his or her proposed disqualification form the eligible list or employment in the public service.

* Although the statutory authority for the termination is not specified in the decision, it is assumed that Anonymous was disqualified pursuant to §50.4 of the Civil Service Law. §50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to §50.4.]

** The Board of Parole is also authorized to issue such Certificates. See §703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

OATH Index No. 300/13*

As a general rule, evidence of prior disciplinary action taken against an employee may not be admitted at his or her disciplinary hearing to show that the employee “has a propensity to commit the charged misconduct.”

In this case, where the employee was charged with threatening and assaulting a supervisor, OATH Administrative Law Judge Faye Lewis admitted evidence that the employee had earlier pled guilty to prior charges of time and leave violations for the purpose of impeaching or rebutting the employee’s claim that he his supervisor was “scapegoating” him for “non-existent time and leave issues.”

ALJ Lewis noted that there is an exception to the rule barring the introduction of evidence of  “prior disciplinary action” taken against the individual. Such evidence may be may be admitted and considered when [1] it is offered for a different reason or another purpose; [2] where prior violations have independent relevance and [3] the fact-finder is an attorney or a judge trained to consider potentially prejudicial evidence introduced for limited purposes.

Judge Lewis also observed that “four different sets of charges, each with multiple specifications,” were served on the employee. Some of the charges, said the ALJ, were duplicative in that they alleged the same misconduct while citing an alleged violation of  a different rule.

Such duplicative pleadings are “confusing and verbose” said the ALJ. The better practice is to plead misconduct as “a single factual allegation, with citation to the agency rules that are alleged to have been violated

* The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-300.pdf