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Section 3020-a hearing officer may only impose a penalty authorized by statute

Section 3020-a hearing officer may only impose a penalty authorized by statute
Matter of Luis Garcia v Department of Educ. of the City of N.Y., 18 Misc.3d 503

New York City School District Assistant Principal Luis Garcia was found guilty of various charges filed against him pursuant to Section 3020-a of the Education Law. He asked a Supreme Court Justice to vacate or modify the determination of a disciplinary hearing officer that imposed a disciplinary penalty consisting of a suspension without pay and demotion from his position of assistant principal to that of teacher. The District has sought Garcia?s termination but the Hearing Officer, considering Garcia?s 25 years of service with the District, declined to impose the penalty of dismissal.

Judge Emily Jane Goodman found that the evidence in the record supported the Hearing Officer?s finding Garcia guilty of the charges. In the words of Judge Goodman, ?Garcia has provided no basis on which to question the validity of the Decision, which is upheld by this court.?

The court then addressed Garcia?s challenge to the penalty imposed by the Hearing Officer, an unpaid suspension from his position and demotion to the position of teacher. ?Garcia,? said Judge Goodman, ?is correct ? the penalty of demotion is without foundation in the law, in that it violates Education Law §3020-a(4)(a).

In contrast, Section 75.3 of the Civil Service Law, in pertinent part, provides: ?If such officer or employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars to be deducted from the salary or wages of such officer or employee, suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal from the service.?

Education Law §3020-a(4)(a) provides for the following specific penalties: a written reprimand, a fine, suspension for a fixed time without pay, and dismissal.

Education Law §3020-a(4)(a) also provides that ?[i]n lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.?

Significantly, §3020-a(4)(a) does not provide for the penalty of demotion. Judge Goodman commented that:

Although it is clear that the [hearing officer] was attempting to do justice and balance the nature of the offenses with [Garcia?s] past 25 years of service (eight as an assistant principal with no discipline or unsatisfactory ratings), the statute does not allow her to craft such a remedy.

Accordingly, the question of an appropriate penalty to be imposed, based on the Hearing Officer?s findings of guilt, which findings Judge Goodman affirmed, was remanded to the Hearing Officer for determination consistent with the penalties authorized by Education Law §3020-a(4)(a). Judge Goodman, in a footnote to her opinion, Footnote 3, observed ?Although the [hearing officer] had no authority to demote [Garcia] to the position of teacher, that action may, in fact, be the most appropriate and just result in this case. Accordingly, to the extent that [Garcia[ and [the school district] are able to, and do, agree to that result, a remand may be unnecessary,? suggesting that in this situation the parties could ?settle? the disciplinary penalty issue by mutual agreement as to the penalty to be imposed notwithstanding the fact that demotion is not one of penalties authorized in Section 3020-a of the Education Law.

In this instance, the Hearing Officer had recommended two penalties be imposed, (1) a suspension without pay and (2) a demotion from assistant principal to teacher.

Although the issue of ?multiple penalties was not discussed in Judge Goodman?s ruling, case law indicates that in disciplinary actions taken pursuant to Section 75 of the Civil Service Law, the penalties authorized to be imposed are mutually exclusive.

For example, if the employee is found guilty of one or more of the charges and specifications, the employer may impose a penalty of suspension without pay or a reprimand, but not both [Sinnott v Finnerty, 113 AD2d 836]. However, imposing multiple penalties is possible where there are multiple offenses involved [See Wilson v Sartori, 70 AD2d 959].

Presumably the same prohibitions set out in Sinnott would be applied by the courts in challenges to multiple penalties being imposed in disciplinary actions taken pursuant to Section 3020-a of the Education Law.

In contrast, there appear to be no such limitation in cases where an arbitrator imposes multiple disciplinary penalties in resolving disciplinary actions taken pursuant to a collective bargaining agreement unless the agreement itself bars the imposition of multiple penalties.

Full post as published by New York Public Personnel Law on May 14, 2008 (boomark / email).