Labor & Employment Law

Participation of the appointing authority in a disciplinary proceeding

By Harvey Randall, Esq.

Participation of the appointing authority in a disciplinary proceeding
Matter of Phillip Nicoletti v Meyer, 42 A.D.3d 722, Appellate Division, Third Department[1]

The Deputy Commissioner and Director of Operations of the Sullivan County Division of Public Works, Phillip Nicoletti, was served with disciplinary charges alleging that:

He had unlawfully entered certain county offices and photocopied confidential documents;

He had used county purchase requisitions to obtain property for himself; and

He pressured a county legislator to stop a then ongoing investigation into the alleged improprieties within the Division of Public Works.

An independent hearing officer was appointed to conduct the hearing.

In the course of the proceeding, Robert A. Meyer, then serving as the interim Commissioner of Public Works, and Meyer?s wife both testified against Nicoletti.

The Hearing Officer found Nicoletti guilty of three charges of misconduct and recommended his termination. Meyer, as interim Commissioner of Public Works, issued a final disciplinary determination, finding Nicoletti guilty of four charges of misconduct. The penalty imposed on Nicoletti by Meyer: dismissal from County employment.

Nicoletti appealed, challenging Meyer?s findings and his determination as to the penalty to be imposed. Among Nicoletti?s complaints: Meyer should have recused himself from making a final determination.

Nicoletti also challenged the authority of the hearing officer to conduct the disciplinary hearing. The Appellate Division noted the record submitted by Nicoletti?s attorney contained a written designation of authority to the Hearing Officer, thereby negating Nicoletti?s argument that the absence of a written designation mandates annulment of the determination.

Citing Matter of Ernst v Saratoga County, 234 AD2d 764, the Appellate Division agreed with Nicoletti?s contention that Meyer should not have made the final determination in this disciplinary action.

In Ernst, the court said the chair of the county Board of Supervisors denied Ernst a fair and impartial tribunal because the chair of the Board:

(1) met with the county?s attorneys ?to discuss the pending investigation;?

(2) met with the employees involved to, as the chair phrased it, ?relieve their fears;?

(3) signed the notice of the charges against Ernst;

(4) voted to bring charges against Ernst;

(5) served as a witness at the disciplinary hearing: and

(6) voted to accept a hearing officer?s findings of guilt and impose the recommended penalty.

Another aspect of the Ernst case involved making a copy of the transcript of the disciplinary hearing available to each member of the board for the purpose of board members making an independent review of the record. This means a copy of the transcript must be made available to each member of the board who votes. The Ernst the court said that board members failed in this duty because ?the only complete copy of the hearing transcript was made available to the Board members at the county personnel office.?

The court ruled that because both Meyer and his wife were witnesses at Nicoletti disciplinary hearing, Meyer should have recused himself from both (1) reviewing the Hearing Officer?s findings and recommendations and (2) making the final determination.

The Appellate Division then remitted the matter to the County ?simply for a de novo determination by a duly-qualified designee [of the appointing authority] based on the same hearing record and the same Hearing Officer recommendation.?

Reed v Town of Huntington, 186 AD2d 745, provides an example of the action that may be taken upon such a remittal by the court.

Reed, charged with misconduct and incompetence, was terminated from his position following disciplinary action pursuant to Section 75 of the Civil Service Law. He sued and won an order reinstating him to his position when the court found that there was a procedural defect ?in having the town supervisor review the hearing evidence....? The Appellate Division remanded the matter to Huntington for its further consideration of the matter.

A de novo review of the hearing evidence was then conducted by the town?s personnel officer.

In contrast, in some cases courts have allowed the appointing authority ? i.e., the decision maker or body -- to be involved in some aspects of the disciplinary process. In Stanton v Board of Trustees, 550 NY2d 16, the Appellate Division, Second Department, ruled that an employee was not deprived of administrative due process even though members of the Board who voted to terminate Stanton also participated in the underlying investigation that lead to charges of misconduct being brought against her. The court concluded that while a ?fair trial in a fair tribunal is a basic requirement of due process ... it has also been recognized that mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decision-maker.?

Full post as published by New York Public Personnel Law on April 10, 2008 (boomark / email).