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Evidence of misconduct consisting of written reports and testimony of witnesses constitutes ?substantial evidence? in the record

Evidence of misconduct consisting of written reports and testimony of witnesses constitutes ?substantial evidence? in the record
Matter of Overton v Board of Educ. of the Yonkers City School Dist., 2010 NY Slip Op 03452, Decided on April 27, 2010, Appellate Division, Second Department

John Overton, employed by the Board of Education of the Yonkers City School District in a position in the classified service, was served with disciplinary charges pursuant to Civil Service Law §75. He subsequently challenged the Board?s decision to adopt the findings and recommendation of the §75 hearing officer and to terminate him.

The hearing officer found that Overton was guilty of nine charges of misconduct, incompetence, and insubordination base on evidence consisting of written reports and testimony as to the repeated deficiencies in Overton?s work performance, his failure to improve despite subsequent oral and written warnings, and his excessive absences.

The Appellate Division said that the Board?s action based on the hearing officer?s determination that he was guilty of misconduct, incompetence, and insubordination was supported by substantial evidence in the record.*

Citing the Pell Doctrine [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222], the court said that the punishment imposed, dismissal, was not so disproportionate to Overton?s misconduct as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.

The Appellate Division said that given Overton?s ?continued misconduct and insubordination demonstrating a pattern of poor work performance and disruptive behavior burdening both his employer and coworkers, there is no reason to disturb the determination to terminate his employment."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03452.htm

Randall Comments: The appointing authority, here the Board of Education, is required to review the transcript of the hearing and the hearing officer?s findings as a condition precedent to making its determination as whether the employee is guilty of the charge or charges preferred.

In Ernst v. Saratoga County, 234 A.D.2d 764, the Appellate Division said ?As to [Ernst?s] contention that the Board failed to conduct an independent review of the hearing record, the record reveals that each Board member did not have a complete copy of the transcript prior to the Board rendering its determination.?

Saratoga County conceded that the only complete copy of the hearing transcript was made available to the Board members at the County Personnel Office and there was nothing in the record to confirm that each member, in fact, reviewed the full transcript. The Appellate Division annulled the Board?s determination and returned the matter to the Board for its de novo determination on the entire record ?.?

The Board subsequently reviewed the transcript, found Ernst guilty and, again, imposed the penalty of termination. Ernst appealed but the Appellate Division sustained the Board?s action [Ernst v. Saratoga County, 251 A.D.2d 866].

Full post as published by New York Public Personnel Law on May 03, 2010 (boomark / email).