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Disciplinary hearing procedures

By Harvey Randall, Esq.

Disciplinary hearing procedures
Vazquez v NYC Civil Service Commission, Supreme Court New York County, 2002 N.Y. Slip Op. 50076(U); 2002 N.Y. Misc. LEXIS 95

The Vazquez cases required the court to consider a number of issues, some rather rarely encountered, involving the processing disciplinary actions pursuant to Section 75 of the Civil Service Law.

Jose Vazquez was employed as a Caretaker "J" by the New York City Housing Authority [NYCHA]. On March 16, 1998 Vazquez was charged with being absence from work without approval since March 2, 1998, and with subjecting the 12 year-old daughter of a NYCHA resident, Vazquez's former girl friend, to unlawful sexual contact.

A Section 75 hearing "in absentia" was held on April 2, 1998 after Vazquez failed toappear at the appointed time at the place designated for the disciplinary hearing. The Hearing Officer issued a report finding that the charges were proven and recommended that Vazquez be terminated. On May 5, 1998, NYCHA adopted the Hearing Officer's findings and recommendation and dismissed Vazquez.

Vazquez filed an appeal with City's Civil Service Commission seeking to reopen the hearing because "he had not absented himself from the original hearing voluntarily." The Commission granted his request and a "continued hearing" was held in June and July of 1999. On August 20, 1999, the hearing officer issued a report and recommendation to NYCHA, after which it again ordered that Vazquez be terminated from his position.

Vazquez filed a second appeal with the Commission challenging the department's deter­mination. In November 2000, the then four member Commission stated that was split 2-2 and lacking a majority for an affirmative reversal, it was required sustained the Depart­ment's determination.

The first issue concerned the question of the timeliness of Vazquez's appeal. The City claimed it was untimely since it was commenced more than four months after the Commission's original determination was issued. Vazquez, however, had received a "corrected copy" of the Commission's determination on November 10, 2000. Four months from that date, March 10, 2001, fell on a Saturday and the first business day thereafter was March 12, 2001, which is the date on which his petition was filed. The court said that the date of the "corrected decision" is the operative one for purposes of determining timeliness because it constituted the final administrative determination. Thus Vazquez's petition was ruled timely.

Another issue: Was Vazquez denied due process because only 4 members of the Com­mission heard his appeal which resulted in a split decision?

The City contended that the fact that four, rather than five, members of the Commission heard the appeal did not deprive Vazquez of due process.

The court said that Section 41 of the New York General Construction Law addresses the question of the consideration of matters by less than a full board. It provides that "Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers ... shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty."

Although a majority of the "whole number" of the five person City Civil Service Com­mission heard Vazquez's appeal, the Commission, because it was evenly divided, by its own admission did not reach any determination. Did this have any impact on Vazquez's claim?

In the eyes of the court it did. According to the ruling, when there is a vacancy, or an inability of a Commissioner to act, the Commission can easily postpone action on the appeal until the fifth Commissioner is able to take part in the deliberations. The court ruled that "As a matter of fairness, [Vazquez] is entitled to have this matter remanded to the Commission, which now has five Commissioners, to hear and decide the appeal filed on his behalf."

The court pointed to Section 76.3 of the Civil Service Law which, in pertinent part, provides that if an employee elects to appeal to a state or municipal commission, as Vazquez did in this case, the decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.

Note: As the Court of Appeals held in New York City Department of Environmental Protection v New York City Civil Service Commission, 78 NY2d 318, judicial review of Commission decisions is precluded in all but the "exceedingly limited" circumstance in which the Commission is alleged to have acted "illegally, unconstitutionally, or in excess of its jurisdiction."

The court commented that in a footnote in its "decision," the Commission said that because it was split 2 to 2, "the determination [below] must be affirmed." In the view of the court, this meant that the Commission had not made a decision as required by Section 76.3, thus justifying its remanding Vazquez's appeal for consideration by the full panel.

Full post as published by New York Public Personnel Law on March 07, 2008 (boomark / email).