A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

A delay in a disciplinary hearing resulting from an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

OATH Index No. 1355/17

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation concerning these matters when directed to do so.

One of the issues considered by the ALJ was the employee claim that she was entitled to be paid for certain absence without pay in excess of the statutory 30-days suspension without pay authorized by Section 75 of the Civil Service Law notwithstanding the fact that she was place on such leave without pay in excess of 30 days when her disciplinary hearing was adjourned at her request because her attorney was not available.

The Civil Service Law provides that an employee may be suspended without pay for a period not exceeding thirty days pending the determination of charges of incompetency or misconduct and the employee may recover back pay for any such suspension exceeding 30 days, provided that the delay is not the employee’s fault. In this instance the appointing authority argued that the employee should not be paid for delays resulting from its agreeing to an adjournment of the hearing at the employee's request.

The appointing authority contended that it did not object to the employee's hearing adjournment request "provided that there was no pay liability" against the employer attributable to the employee's  request for the adjournment. Thus, argued the appointing authority, the employee is not entitled to back pay for any period of suspension without pay attributable the adjournment of the hearing.

Judge Gloade, explained that "This tribunal may recommend restoration of pay for any period of pre-trial suspension that exceeds 30 days," citing Teachers’ Retirement System v. Barrett, , OATH Index No. 1210/99," and, citing Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17, said that an Administrative Law Judge may recommend payment of back pay if employee was placed on an involuntary disability leave prior to a hearing without justification. Further, said the ALJ, "Where an employee is suspended for more than 30 days, he or she may recover back pay for the period of suspension exceeding 30 days, provided that the delay in disposing of the charges is not the employee’s fault.

In contrast, said Judge Gloade, a delay occasioned by an employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay. "While the employee's request for adjournment appears to be bona fide, that does not exempt her from the general rule that the party responsible for the delay bears the cost."

Citing Transit Auth. v. Danese, OATH Index No. 1043/95, ALJ Gloade concluded that it was unclear from the record whether the employee was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay the employee would be entitled to receive "as it was beyond the purview of the tribunal."

The appointing authority adopted the findings, and the penalty recommended, by the ALJ.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1355.pdf

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Board of Educ. of the Dundee Cent. School Dist. v Coleman, 29 Misc 3d 1204(A)

May an arbitrator require the appointing authority to continue its employer contributions for health insurance premiums during the employees disciplinary suspension without pay? This was one of the issues considered by Supreme Court in Board of Education of the Dundee Central School District v Coleman

Dundee had served Douglas Coleman, a tenured social studies teacher with disciplinary charges pursuant to Education Law §3020-a. Ultimately the Hearing Officer, finding Coleman guilty of some of the charges and dismissing others, suspended Coleman from "from all teaching duties without pay" but directed Dundee to continue paying employer contributions for Coleman's health insurance premiums during the period of his suspension without pay.

Typically an employee participating in an employer's health insurance plan who is removed from the payroll for a period of absence "without pay" is required to pay both the employer's and the employee's contribution for the required health insurance premiums.

Dundee filed a "hybrid application" pursuant to Articles 75 and 78 of the CPLR, seeking a partial vacation of the penalty imposed by the Hearing Officer with respect to, among other things, it continuing to pay its "employer contributions" towards Coleman's premiums for his health insurance during the period of his suspension without pay contending Education Law §3020-a(4)(a) necessarily involves "a suspension of all payments by Dundee for Coleman's benefit."*

In rebuttal, Coleman argued that §3020-a(4)(a) permits a penalty of suspension without pay to include of the suspension of the payment of an employer's contributions for "fringe benefits."

Supreme Court rejected Coleman's theory, stating that "The statutory scheme clearly contemplates suspension of all financial benefits upon a suspension without pay," citing the decision of the Commissioner of Education in the Appeal of the Board of Education of the Carthage Central School District re: Rosintoski, 33 Educ. Dept Rep. 693 [citing Adrian v. Board of Education of the East Ramapo Central School District, 60 AD2d 840].

The court then directed Coleman to reimburse Dundee "for any such costs already advanced on Coleman's behalf" and, in addition, ruled that "Dundee is immediately stayed from making any further contributions during the suspension period."

* Education Law §3020-a(4)(a), in pertinent part, provides "In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2010/2010_51684.htm

The anatomy of an administrative disciplinary decision

The anatomy of an administrative disciplinary decision

Marentette v City of Canandaigua,, 2018 NY Slip Op 01764, Appellate Division, Fourth Department

The §75 disciplinary Hearing Officer found the Fire Chief [Chief] of the City of Canandaigua guilty acts of misconduct, having committed acts of insubordination by repeatedly violated the directive of his superior, making unauthorized entries on his subordinates' time sheets, and acts of incompetence by authorizing the expenditure of public funds on several occasions in violation of the City's procurement policies.

The Hearing Officer recommended that the Chief be demoted. The appointing authority determined that termination was warranted given the gravity of the misconduct, the Chiefs "disciplinary record," earlier "unsuccessful attempts at remediation," and the loss of trust in the Chief.

In response to the Chief's appeal of the decision of the appointing authority, the Appellate Division, sustained the actions of the disciplinary action Hearing Officer and the appointing authority and:

1. Rejected the Chief's argument that preponderance of the evidence is the applicable evidentiary standard in this case explaining that "It is well established that substantial evidence is generally the applicable evidentiary standard for disciplinary matters involving public employees under Civil Service Law §75, and that due process requires application of the preponderance of the evidence standard only "when the penalty of dismissal is accompanied by some added stigma." Here, said the court, there was nothing in the record suggesting that stigma has resulted from the Chief's termination in that he has not been "[effectively] prohibited from obtaining future . . . employment [as a firefighter or an officer of a fire department], or that he is subjected to a public registry of any sort";

2. Ruled that the determination that the Chief committed acts of insubordination and incompetence was supported by substantial evidence; i.e., by "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.";

3. Said that the Chief's exculpatory explanations for his conduct raised an issue of credibility that the Hearing Officer was entitled to resolve against him.;

4. Was unpersuaded by the Chief's contention that the termination of his employment was unjustified under the circumstances, indicating that the court's review of the penalty imposed by the appointing authority "is extremely limited" does not include "any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."; and

5. Citing Kelly v Safir, 96 NY2d 32, [rearg denied 96 NY2d 854], concluded that the penalty of termination was "not so disproportionate to the offense[s] as to be shocking to one's sense of fairness"  and thus "did not constitute an abuse of discretion as a matter of law ... particularly in light of [the Chief's] conduct underlying the charges and his history of disciplinary infractions during his tenure as Fire Chief."

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01764.htm