Hearsay evidence coupled with nonhearsay evidence held to constitute substantial evidence sufficient to support the appointing authority’s disciplinary decision

Hearsay evidence coupled with nonhearsay evidence held to constitute substantial evidence sufficient to support the appointing authority’s disciplinary decision

2013 NY Slip Op 05630, Appellate Division, Second Department

The appointing authority terminated the employee [Petitioner] following a Civil Service Law §75 disciplinary hearing. Petitioner was found guilty of “misconduct and/or incompetence” and was terminated from her position. Petitioner appealed.

The Appellate confirmed the appointing authority’s determination, explaining that the review of administrative determinations in employee disciplinary cases made after a hearing pursuant to Civil Service Law §75 is limited to a consideration of whether the appointing authority's determination was supported by substantial evidence.

Although much of the evidence against Petitioner offered by the employer was hearsay, the Appellate Division said that this hearsay evidence, in conjunction with the nonhearsay evidence presented at the hearing, constituted substantial evidence sufficient to support the determination that Petitioner was guilty of the charges brought against her.

As to the penalty imposed, termination, the court said that the penalty was “not so disproportionate to the offense committed as to be shocking to one's sense of fairness,” citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05630.htm
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Court holds that termination of an employee after 19 years of employment because of an isolated incident of misconduct shocking to one's sense of fairness”

Court holds that termination of an employee after 19 years of employment because of an isolated incident of misconduct shocking to one's sense of fairness”

2013 NY Slip Op 51322(U), Supreme Court, Dutchess County, Justice James D. Pagones [Not selected for publications in the Official Reports.].

An employee [Petitioner] was served with a number disciplinary charges pursuant to Civil Service Law §75, found guilty of such charges and dismissed from his position.

In a previous proceeding, the Appellate Division found "that substantial evidence in the record supports the determination of [the appointing authority] that Petitioner was guilty of charges one, two, and three…” Accordingly, Justice Pagones said that in the action before him there was no issue of fact as to Petitioner’s guilt as to charges one, two and three. However, said Justice Pagones, “[t]his Court must now look specifically to the offense(s) and determine whether or not the penalty, termination, shocks the judicial conscience."

The court concluded that although the facts and the charges as sustained by the Appellate Division, “while serious, do not fit the penalty of termination.”

In brief, Petitioner was observed “consuming a beer and a shot of liquor” from approximately 1:40 p.m. until 2:40 p.m during his workday, at which point Petitioner returned to work. "This one hour time frame," said the court, "has now cost [Petitioner] his job and his benefits associated with the position."

Recognizing that Petitioner committed a serious infraction, Justice Pagones ruled that “the penalty of termination of his employment is so disproportionate to the offense committed as be shocking to one's sense of fairness” considering that there was no evidence in the record before the Court that Petitioner “during his nineteen (19) years of employment with [employer] had presented a disciplinary problem or that the incident was anything but isolated.”

Justice Pagones then remitted the matter to the appointing authority for the imposition of a lesser penalty and “held in abeyance pending submissions by [Petitioner] and [appointing authority] of a computation of the value of [Petitioner's] full back pay and benefits less any compensation derived from other employment or any unemployment benefits received from September 9, 2010 until now.”

N.B. With respect to the amount of the back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51322.htm

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Reminder from the Internal Revenue Service to register for its “Rehired Annuitants” online presentation for government employers

Reminder from the Internal Revenue Service to register for its “Rehired Annuitants” online presentation for government employers 

Date and time of the presentation: 
August 15, 2013 at 2 p.m. Eastern Time

The Internal Revenue Service [IRS] advises that payroll tax treatment of a former government employee that returns to work for the same entity may be different than it was prior to their retirement or separation. This presentation will help government employers understand how to comply with the complicated and often misunderstood tax implications of hiring a former employee.

For more information and to register, please read this article and then click on to sign up for this free online presentation.

If you have any questions for the IRS about this presentation, click on send us an e-mail.
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Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record

Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record

2013 NY Slip Op 05598, Appellate Division, First Department

The Appellate Division reversed a Supreme Court's ruling that dismissed a petition challenging a teacher’s annual unsatisfactory performance rating and annulled the unsatisfactory rating given the educator.

The court said that the New York City Department of Education’s [DOE] determination to sustain the unsatisfactory performance evaluation was not rationally based on administrative findings that the teacher had engaged in corporal punishment as “there was no longer any documentation substantiating an instance of corporal punishment in [the teacher’s] personnel file after the parties stipulated to the removal of two disciplinary letters from the file.”

DOE’s "Rating Pedagogical Staff Members" procedure, in pertinent part, provides:

1. That a teacher's evaluation must be supported by documentation in his/her personnel file;

2. That documentation removed from a file through grievance procedures is inadmissible in performance reviews; and

3. That documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher's file.

Further, said the court, materials placed in a teacher's personnel file must include a signature and date line for the teacher, evidencing that he or she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.

Citing Appeal of Naomi Dowrie [46 Ed Dept Rep 273, Decisions of the Commissioner of Education, Decision No. 15,506, in which the Commissioner of the New York State Department of Education upheld the petitioner's appeal from an unsatisfactory rating on the ground that the respondent had failed to follow its own procedures and had considered material that had been removed from the petitioner's personnel file through the grievance process, i.e., "materials not properly placed in [the] teacher's personal [sic] file," the Appellate Division concluded that there was no documentation in the record to support the unsatisfactory rating give the teacher in this instance.

The court also noted Mangone v Klein, a decision by a State Supreme Court justice in which the court, relying of Dowrie, denied DOE's motion to dismiss the educator’s petition seeking to set aside his unsatisfactory rating upon finding that there was nothing in the teacher's personnel file other than a disciplinary letter that had been ordered to be removed following arbitration related to the allegations against him. [Mangone was not selected for publication in the Official Reports but the decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2007/2007_32475.pdf].

The DOE decision is posted on the Internet at:  http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05598.htm
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Designating a Civil Service Law §75 disciplinary hearing officer and making a final disciplinary determination

Designating a Civil Service Law §75 disciplinary hearing officer and making a final disciplinary determination

6 Misc3d 1012(a), Affirmed 48 AD3d 815*

Civil Service Law §75 provides that the appointing authority may designate an individual to conduct a §75 disciplinary hearing and to make findings of fact and recommend the penalty to be imposed. The appointing authority is to then review such findings and recommendation and make the final determination. Where the appointing authority believes it cannot be impartial or is biased against the accused employee, the appointing authority is to delegate the decision-making authority to some other individual authorized to act in his absence. If no such person is available, then the Rule of Necessity would apply and the appointing authority would have to review the record and make the final determination, notwithstanding being “admittedly biased” or unable to act “impartially.”

Following her termination from her position, the individual [Petitioner] brought an Article 78 action seeking an order declaring that action “illegal, ultra vires, null and void.” State Supreme Court Justice Dickerson granted her petition.

Justice Dickerson’s decision indicates that on May 16, 2002, the Mayor preferred disciplinary charges against Petitioner pursuant to the Civil Service Law Section 75. The charges alleged insubordination and/or misconduct and neglect of duty and/or incompetence to perform the duties of her position.

The Mayor appointed an individual to serve as the Hearing Officer to determine the disciplinary charges. Stein sent his findings and recommendations to the Mayor on January 2, 2004. The Mayor then delegated to an independent arbitrator the full power and authority to make the disciplinary determination after considering Hearing Officer's report and recommendations.

The court ruled that the Mayor's designating an individual to serve as the hearing officer and his delegation of his decision making authority with respect to the charges filed against Petitioner to an independent arbitrator, including authority to make a final determination of those charges and subsequent termination of Petitioner's employment, were illegal, ultra vires, null and void. Justice Dickerson vacated the termination of Petitioner without prejudice to the City to appoint a new Hearing Officer for the purpose of conducting a new disciplinary hearing. He then awarded Petitioner back pay from the date of her termination together with any benefits to which she was entitled.

The decision states that the Mayor was admittedly biased, and, indeed, wanted Petitioner dismissed from her position. However, that bias, said the court, does not necessarily excuse him from the duty of making the final determination in this matter. The delegation must be to a duly qualified individual authorized to act during the absence or inability of the appointing authority not previously involved in the proceedings or charges. Only when there is no such official and one cannot be appointed, and thus no such delegation is possible, does the “Rule of Necessity” apply, permitting an otherwise partial official to make the final determination.”

The court said that an independent arbitrator with no connection "with the governmental employment at issue," was not “a duly qualified individual authorized to act during the absence or inability of the appointing authority. As the Mayor believed he was biased and not impartial, it was the Mayor's responsibility to try to delegate the decision-making authority to either the City's personnel officer, the City Clerk, or to some other individual authorized to act in his absence. If no such person was available, then the Rule of Necessity would apply and the Mayor would have had to make the final determination himself, notwithstanding being “admittedly biased.”

The court then considered Civil Service Law Section 75(2), which states, in pertinent part, "...The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred or by a deputy or other person designated by such officer or body in writing for that purpose."

But, said Justice Dickerson, the Mayor was neither "the officer or body having the power to remove" nor was he "a deputy or other person designated by such officer or body in writing for that purpose". Under the controlling provision in the City Code, the authority to remove, which is a function of the power to appoint, was not specifically designated to anyone by the officials having that authority.

As to the hearing officer conducting the disciplinary hearing, the court said, “It is readily apparent that there was no written delegation by the appropriate authority to hear Petitioner's disciplinary case”. Jurisdiction was thus lacking and the hearing Officer had no authority to either conduct the disciplinary hearing or to make a report and recommendation regarding his “findings”. 

* The Supreme Court’s decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_50033.htm .  

The Appellate Division’s decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2008/2008_01762.htm

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