An employee cannot be found guilty of disciplinary charges not included in the notice of discipline or a timely amendment to such notice

The employee [Petitioner] was terminated from his position following an investigation conducted by the Inspector General's office into his alleged misconduct and ultimately was served with a notice of disciplinary charges pursuant to Civil Service Law §75. The notice of discipline set out nine charges of purported official misconduct in violation of Penal Law §195.00. Petitioner's answer denied all of the charges and Petitioner requested a hearing.

A §75 disciplinary hearing was held, after which the Hearing Officer recommended dismissal of all of the charges preferred against Petitioner. 

The appointing authority [Director] adopted the Hearing Officer's recommendation to the extent of dismissing all charges except Charge 3. The Director sustained Charge 3 and imposed the penalty of dismissal of Petitioner from his position with the employer. 

Petitioner next commenced a CPLR Article 78  proceeding seeking a court order annulling the Director's determination with respect to Charge 3, contending, among other things, that the Director erred as a matter of law and abused her discretion in finding Petitioner guilty of acts of misconduct that were not alleged in the charge.

Supreme Court transferred the matter to the Appellate Division, which said, "we must annul [the Director's] determination as to [Charge] 3" because it believed that the Petitioner's due process rights were violated.

Charge 2 had alleged that Petitioner had "accosted a particular ... employee with unwanted and inappropriate conversation" while at an after-hours social gathering at a restaurant. The language of Charge 3 addressed Petitioner's behavior toward the same employee at "similar after-hours social functions" as set out in Charge 2.

In addition to denying all of the charges in the notice of discipline, Petitioner requested that the charges be particularized and that he be provided with the names of the employees referred to in the charges. In response to the request for particularization, the employer  served Petitioner with an amended notice of discipline which, among other things, amended Charge 3 to specify that, at these same after-hours social functions, Petitioner inappropriately referred to the employee's sexual orientation but the Charge was "otherwise unchanged."

At the disciplinary hearing, the female employee testified that the conversation described in the amended Charge 3 occurred in the workplace rather than at an "after-hours social function." The Director determined that Charge 3 had proven implicitly and "amended by the testimony of [the female employee] during the hearing." The Appellate Division observed that this "implicit amendment" was first pronounced in the Director's decision, well after the close of proof, for the purpose of conforming the Charge 3 to the proof, which in effect changed the location of Petitioner's alleged misconduct conduct from an after-hours social function to the workplace.

The Appellate Division opined that the Petitioner's due process rights were violated by, in essence, convicting him of uncharged conduct and imposing the severe penalty of termination based on such uncharged conduct. The court noted that the standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence and the first fundamental of due process is "notice of the charges made." 

This principle, said the court, equally applies to an administrative disciplinary proceeding "for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged," citing Matter of Murrayv Murphy, 24 NY2d 150 and other court decisions. In the words of the court: "Fundamentally, the determination made in a disciplinary proceeding 'must be based on the charges made' and it is error to find a public employee guilty of uncharged specifications of misconduct and impose a penalty thereon."

In some circumstances, however, the Appellate Division noted that amendments of the charges filed against the individual are allowed, calling attention to the fact that "a minor amendment to a charge, made 'part way through [a] hearing, and at a time when [the] petitioner had ample opportunity to respond to the amendment, did not deprive [the petitioner] of due process'."

In contrast, however, the court found that Petitioner was afforded no such opportunity as the amendment was made by the Director in her decision "after the proof was most assuredly closed and the Hearing Officer's determination referred." This was characterized as a "fatal flaw in this argument" as the testimony that was elicited at the hearing essentially amounted to a new charge based on a totally different context: conduct that allegedly took place at an after-hours social functions "was transported to the formal office setting."

Also noted by the court was the fact that the record is void of any request by the employer, "formally or informally, before or during the hearing, to amend the charge to give [Petitioner] notice that the behavior complained of was committed in the workplace."* Further, opined the Appellate Division, "the onus is not upon the employee to make the employer's case for it by objecting when hearing testimony strays from the conduct charged [and the] employee has the right to assume that such testimony will be properly rejected, as the Hearing Officer indicated here."

Accordingly, the Appellate Division found that the portion of the determination sustaining Charge 3 should be annulled.

* The Appellate Division also rejected the employer's argument that the challenged amendment was proper because no objection was made to the "amending" testimony given by the witness at the disciplinary hearing.

Click HERE to access the Appellate Division's posted on the Internet.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

 

 

Awarding attorney's fees and costs pursuant to the Freedom of Information Law

In a CPLR Article 78 seeking to compel the production of certain records pursuant to the Freedom of Information Law (Article 6 of the Public Officers Law) and for an award of attorney's fees and litigation costs, Supreme Court denied that branch of the petition that sought such an award, and, in effect, dismissed that portion of the proceeding. Petitioner appealed the Supreme Court's ruling.

Citing Matter of Cook v Nassau County Police Dept., 140 AD3d 1059, the Appellate Division noted that the State Legislature, "[in] order to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL", provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings.

Reasonable attorney's fees and other litigation costs reasonably incurred by such person "in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" are typically award such fees pursuant to Public Officers Law §89. Further, a petitioner is deemed to have "substantially prevailed" within the meaning of §89(4)(c) when the commencement of the "CPLR Article 78 proceeding ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure."

In this action the Supreme Court denied the Petitioner's request for attorney's fees and litigation costs, finding that Petitioner had not substantially prevailed and that the Respondents "demonstrated a reasonable basis on the ground of privilege for denying the [FOIL] request." 

Petitioner appealed the Supreme Court's ruling and the Appellate Division found that the Petitioner had "substantially prevailed" as the result of initiating an Article 78 action. Reversing the Supreme Court's order that "denied that branch of the petition seeking an award of attorney's fees and litigation costs," the Appellate Division held that such fees and costs should have been granted to the Petitioner. The court then remitted the matter to the Supreme Court "for a determination of the amount of an award of reasonable attorney's fees and litigation costs" to the Petitioner.

The Appellate Division explained the Respondents did not timely respond to the Petitioner's FOIL request and its initial response consisted of four pages of materials that failed to address three of the four enumerated categories of material Petitioner sought. "It was not until after the commencement of this proceeding that the Respondents provided a significant number of additional documents responsive to the [Petitioner's] FOIL request" [emphasis supplied by the Appellate Division in it opinion]. Under the circumstances of this case, said the court, "the [Petitioner] was the 'substantially prevailing' party."

The Appellate Division's decision also opined that the Respondents "did not have a reasonable basis for initially denying the [Petitioner] access to the responsive materials." Although a limited amount of material was reasonably withheld based on attorney-client privilege, the "[Petitioner's] legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to h[is] FOIL request."

Click HEREto access the Appellate Division's decision posted on the Internet.

 

Authority to determine that there is "probable cause" to file disciplinary charges pursuant Education Law §3020-a against an individual

The principal of a New York City Department of Education [DOE] school filed disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Educator] employed at the school alleging Educator was guilty of "various instances" of incompetence, misconduct, and neglect of duty.

At the §3020-a disciplinary hearing Educator moved to dismiss the disciplinary charges on the ground that they were "defective as they fail to adhere to Education Law §3020-a(2)(a)." Educator relied on the fact that the finding of probable cause to file the disciplinary charges was made by the Educator's school principal rather than by the "employing school board."*

The §3020-a hearing officer (1) denied Educator's motion to dismiss the charges; (2) sustained the charges and specifications alleged by the school principal; and (3) determined that the appropriate penalty to be imposed on the Educator was dismissal from the position. 

Educator appealed the hearing officer's determination pursuant to CPLR Article 75 while DOE moved to dismiss Educator's appeal and to confirm the hearing officer's findings, determination and award.

Supreme Court denied DOE's to dismiss Educator's appeal and ultimately granted Educator's petition, explaining that "DOE's failure to submit the charges against [Educator] to the employing board to determine whether probable cause existed [to go forward with the disciplinary action] constitutes a procedural defect depriving [the] Hearing Officer ... of jurisdiction to consider the charges." In the words of the Supreme Court: "[The] Hearing Officer ...  rejected [Educator's] argument, but this Court does not."* DOE appealed the court's ruling.

CPLR 7511(b) sets grounds for vacating an arbitration award. The Appellate Division said that as relevant here, "[t]he award shall be vacated on the application of a party who ... participated in the arbitration ... if the court finds that the rights of that party were prejudiced by ... an arbitrator" who "exceeded his [or her] power."

Rejecting the argument advanced by Educator, the Appellate Division held that "the absence of a vote on probable cause by the 'employing board' (Education Law §3020-a[2]), did not deprive the hearing officer of the jurisdictional authority to hear and determine the underlying disciplinary charges." Rather, as the hearing officer determined, the Chancellor was vested with the authority "[t]o exercise all of the duties and responsibilities of the employing board as set forth in [Education Law §3020-a]."

Further, the Appellate Division determined that "Supreme Court erred to the extent that it concluded, in effect, as an alternative ground for its determination in the order ... that the DOE was required to submit evidence to prove that the Chancellor actually delegated the relevant authority to the principal of [Educator's] school. That issue was not raised before the hearing officer in [Educator's] motion to dismiss, was not asserted in the petition, and was not properly before the Supreme Court."

Under the circumstances, the Appellate Division concluded that "in the absence of any cognizable basis for relief asserted in [Educator's] petition [Supreme Court] should have granted the DOE's motion pursuant to CPLR 404(a) and 3211(a)(7) to dismiss the petition and, pursuant to CPLR 7511(e), to confirm the arbitration award."

* The Appellate Division's decision notes that the hearing officer concluded that a probable cause determination need not be made after a vote by the employing board on probable cause and §2590-h of the Education Law provides the Chancellor of the DOE with "the statutory authority to make a probable cause determination, and to delegate that authority to subordinate individuals within the DOE, including, as relevant here, to the principal of a school."

Click HERE to access the Appellate Division's decision.

 

Employee's complaint alleging constructive dismissal and violation of the Freedom of Information Law dismissed

Plaintiff was employed by the New York City Department of Transportation [DOT] in 1997. In 2014 he resigned from his position and in 2017 commenced this action alleging that [1] he had been constructively discharged from his employment by DOT as the result of his reporting "other employees' misconduct," and [2] that the City of New York had failed to respond to his request to disclose certain records in violation of New York State's Freedom of Information Law [FOIL].

Supreme Court denied DOT's motion to dismiss Plaintiff's causes of action and DOT appealed. The Appellate Division reversed the lower court's order "on the law."

Addressing Plaintiff's complaint alleging constructive dismissal, the Appellate Division, citing Golston-Green v City of New York, 184 AD3d 24, explained that an "employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign."

Here, however, the Appellate Division, "accepting the facts as alleged to be true, and according the [Plaintiff] the benefit of every possible favorable inference," opined that Plaintiff's complaint "fails to state a cause of action alleging constructive discharge, as the allegations are either vague and conclusory" or involve events that allegedly occurred after the Plaintiff had resigned from DOT.

Addressing Plaintiff's complaints contending that New York City had violated FOIL, the Appellate Division said that a person alleging the denial of requested information within the meaning of Public Officers Law §89(4)(a), "must appeal the denial in writing to the head of the entity or other designated person within 30 days." Finding that Plaintiff did not submit an appeal within 30 days of the alleged denial, the Appellate Division said that Plaintiff had "failed to exhaust his administrative remedies" and because of this failure "could not resort to a judicial forum to gain relief."

Accordingly, the Appellate Division held that Supreme Court should have granted those branches of the City's motion seeking dismissal of Plaintiff's causes of action to recover damages for constructive discharge and to compel disclosure of certain records pursuant to FOIL.

Click HEREto access the Appellate Division's decision posted on the Internet.

Negligent hiring and, or, retention of employees

One of the issues considered by the Appellate Division in this action was the Plaintiff's allegation that the employer was negligent in its appointment and retention of certain employees.

A majority of the court, Judge Friedman dissenting in part in a separate Opinion, sustained this branch of Plaintiff's cause of action, noting:

1. "A cause of action for negligent hiring and retention requires allegations that an employer knew of its employee's harmful propensities, that it failed to take necessary action, and that this failure caused damage to others;

2. "The cause of action does not need to be pleaded with specificity; and  

3. "Liability for negligent hiring and retention does not require a special relationship between the defendant and the alleged victim."

Further, opined the Appellate Division, "[l]iability for negligent hiring and retention is not limited to employees' actions within their scope of employment," explaining it obtains where the employer's negligence is a proximate cause of a plaintiff's injury.

Click HEREto access the Appellate Division's opinion.