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Contract grievance procedure held inapplicable in Article 78 disciplinary appeal

By Harvey Randall, Esq.

Contract grievance procedure held inapplicable in Article 78 disciplinary appeal
Coleman v Town of Eastchester, 2007 NY Slip Op 03692, Decided on April 24, 2007, Appellate Division, Second Department

Russell Coleman, a groundskeeper for a municipal golfing facility, was charged with 18 specifications of misconduct, insubordination, and incompetence involving the performance of his work. The disciplinary hearing officer found Coleman guilty of nine of the charges. Adopting the findings of the hearing officer, the Town suspended Coleman without pay for 60 days.
Coleman sued, contending that the Town?s determination was not supported by substantial evidence and that the penalty it imposed was shocking to one?s sense of fairness.

The Town, in rebuttal, asked the court to dismiss Coleman?s petition on the ground that he failed to exhaust his administrative remedies prior to commencing his Article 78 proceeding because he failed to grieve the Town?s decision through grievance procedure set forth in the relevant collective bargaining agreement.

The Appellate Division denied the Town?s motion, noting that ?Coleman?s contentions that the Town?s determination was not supported by substantial evidence and that the penalty imposed was shocking to one?s sense of fairness, were not governed by the grievance procedure set forth in the collective bargaining agreement.?

Turning to the merits of Coleman?s petition, Appellate Division ruled that there was substantial evidence in the record to support the findings of the hearing officer as to Coleman?s guilt with respect to nine of the specifications in the charges filed against him. Further, said the court, it did not find ?the penalty imposed was not so disproportionate to Coleman?s conduct as to be shocking to one?s sense of fairness,? citing Pell v Board of Education, 34 NY2d 222.

Full post as published by New York Public Personnel Law on January 29, 2008 (boomark / email).