Going forward with a scheduled disciplinary hearing in the absence of the charged party

A member of a school board [Petitioner] appealed the decision of the Board of Education [Board] to remove him from office.

The Petitioner had been personally served with a notice of disciplinary charges, a hearing officer to preside over the hearing had been designated, and the disciplinary hearing had been scheduled to be held on a date certain. A few days prior to the scheduled hearing date Petitioner emailed the Hearing Officer to request an adjournment of the hearing date.  The Hearing Officer responded later the same day, indicating that he was “not able to postpone the hearing unilaterally” and recommend Petitioner contact the Board's counsel.* 

There was no indication in the record that Petitioner took any such action. 

The hearing took place as scheduled, notwithstanding the absence of Petitioner. Subsequently the Board voted to remove Petitioner from his position "in a 4-3 vote". Petitioner filed an appeal challenging the Board's action with New York State's Commissioner of Education, Dr. Betty A. Rosa. 

Contending that the Board "denied him a full and fair opportunity to refute the charges against him", Petitiopner asked the Commissioner to direct his "restoration to the board".  The Board argued that Petitioner was afforded sufficient due process prior to his removal and suggested that Petitioner "abandoned his request for an adjournment because he did not pose such a request to counsel for [the Board]".

Commissioner Rosa noted that:

1. Pursuant to Education Law §1709 (18), the board of education of every union free school district has the power “[t]o remove any member of their board for official misconduct” after a hearing;

2. “A written copy of all charges made of such [alleged] misconduct shall be served upon [the board member] at least ten days before the time appointed for a hearing of the same”;

3. The board member is to be afforded “a full and fair opportunity to refute such charges before removal”; and

4. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner ruled that the Board "erred by proceeding with the hearing" in Petitioner’s absence as Petitioner wrote to the hearing officer six days prior to the hearing to request an adjournment.

Although the hearing officer opined that he could not postpone the hearing, and recommended that Petitioner contact counsel for the Board, "Neither the hearing officer nor counsel for [the Board] took any further action until the day of the hearing, at which time the hearing officer recounted the forgoing chronology and asked counsel for [the Board] “how [he] want[ed] to proceed.”  

On the designated hearing date the Board presented its case.

The Commission held that the hearing officer erred by failing to grant or deny Petitioner’s request for an adjournment and opined this resulted in substantial prejudice to Petitioner. 

In the words of the Commissioner, “The grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of [a] trial court” — or, here, a hearing officer" citing Matter Steven B., 6 NY3d 888."

Referring to Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263 and other Decisions of the Commissioner of Education, Dr. Rosa noted that a hearing officer possesses the inherent power to postpone a hearing. Accordingly, the Commissioner found the hearing officer's error resulted in substantial prejudice to Petitioner, who, by virtue of his absence, was unable to cross-examine witnesses, examine the Board’s documentary evidence, or introduce witnesses and evidence on his behalf.

The Board had also contended that Petitioner’s request for an adjournment constituted “gamesmanship,”  pointing out that Petitioner waited over two weeks after receipt of the charges to request an adjournment.  However, said the Commissioner, there is no required time frame for adjournment requests.  

In the words of Dr. Rosa, "while undue delay could constitute a valid basis to oppose or deny a request for an adjournment, it does not justify ignoring such a request".

The Commissioner concluded "[t]he entire record demonstrates that in [the Board's] haste to investigate, charge, and remove [Petitioner] from office ... [it] failed to balance its desire to quickly establish its case ... with its need to ensure due process was provided.”**

Ruling that she was "constrained to annul the Board's determination", Commissioner Rosa said her ruling was [1] "without prejudice to [the Board] seeking [Petitioner's] removal a second time based upon the conduct described in the charges and [2] directed that the Respondent "be reinstated to his position as a trustee of the Board ... effective immediately".

* There is no indication that Petitioner did so. 

** See 57 Ed Dept Rep, Decision No. 17,263.

Click HERE to access the Commissioner's decision posted on the Internet.

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