Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing

Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing 

34 AD3d 814

An individual [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law. He was dismissed from his employment after being found guilty of charges of misconduct and insubordination.

Employee sued, contending that the designation of the §75 hearing officer was not made by an officer or body having the power to remove him from his position as required by Civil Service Law §75(2). Consequently, he contended, the report of the hearing officer was a nullity and the determination based upon it was arbitrary. The Appellate Division agreed. It granted Employee's petition and annulled his dismissal.

The court pointed out that in the absence of a specific designation of the body or individual vested with the power to remove an individual from his or her position," the power to remove is a function of the power to appoint."

Employee argued that here the body with the power to remove him, i.e., the appointing authority, was the Board of Education and not the school superintendent. In this instance the hearing officer had been designated by the superintendent rather than the board as mandated by §75(2).

The Appellate Division concluded that on the basis of the record before it, “the designation of the hearing officer was not by an officer or body having the power to remove [Employee] as required by Civil Service Law §75(2).” Accordingly, the report of the hearing officer was a nullity and the determination based upon it arbitrary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08989.htm
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Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity

Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity

34 AD3d 484

It is well settled that as a probationary employee, an individual could be terminated for any reason, as long as the termination was not made in bad faith, was not for a constitutionally impermissible reason, or was not in violation of statutory or decisional law.

The petitioner in this appeal was dismissed from his position with a New York City department before completing his probationary period. He challenged his termination, contending he was dismissed “in retaliation for his filing of a union grievance.” If true, this would constitute an impermissible reason for terminating an individual during his or her probationary period.

However, the individual has the burden of proving (a) that he or she was engaged in protected union activity, (b) that the appointing authority had knowledge of the activity, and (c) that he or she would not have been discharged from employment but for the activity.

The Supreme Court determined that the petitioner in this action established a prima facie case of improper motivation, thereby shifting “the burden of persuasion” to the appointing authority to establish that its actions were motivated by a legitimate business reason. Supreme Court ultimately found that the appointing authority failed to meet this burden.

The Appellate Division agreed with the tests applied by the Supreme Court in making its ruling. It affirmed the Supreme Court’s finding that the appointing authority had failed to meet its “burden of persuasion” and ruled that Supreme Court properly annulled the appointing authority's decision to terminate the petitioner.

In addition, the Appellate Division affirmed Supreme Court’s order directing the reinstatement of the petitioner to his former  position with the agency, with full back pay and benefits.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2006/2006_08135.htm

Appointing authority's reliance on the findings of the disciplinary hearing officer

Appointing authority's reliance on the findings of the disciplinary hearing officer

34 AD3d 1219

The petitioner challenged the decision of the School Board to terminate his employment with the school district, contending that the Board’s action was arbitrary and capricious because it did not set out the factual reasons for its action.

The President of the Board, however, had submitted an affidavit to the court indicating that the Board, after reviewing the findings and recommendations of the hearing officer, had adopted both the hearing officers's findings as to guilty and the penalty recommended by the hearing officer.

The Appellate Division said that since the petitioner failed to produce any evidence that the Board (1) failed to make an independent appraisal of the evidence and (2) failed to reach independent conclusion, it “declined to disturb the Board's determination, ” under the circumstances, the Board was entitled to rely on and adopt the findings of fact and the recommendation of the Hearing Officer who conducted petitioner’s hearing pursuant to §75 of the Civil Service Law.

The court then dismissed the petitioner’s appeal, rejecting his claim that that [1] the Hearing Officer's findings of fact and recommendations were not based on substantial evidence and [2] imposing the penalty of termination was shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08383.htm

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