Labor & Employment Law

Postponing a disciplinary hearing ? suspension without pay

By Harvey Randall, Esq.

Postponing a disciplinary hearing ? suspension without pay
Matter of Skrypek v Bennett, App Div, 3d Dept 2006 NYSlipOp 05257

State Trooper Randall R. Skrypek challenging his suspension without pay pending disciplinary action following an off-duty incident in which he misrepresented to 911 operators and police investigators that he had been assaulted and robbed. The Appellate Division ruled that although the Civil Service Law provides that an employee against whom charges of misconduct are pending may be suspended without pay for a period not exceeding 30 days (see Civil Service Law § 75 [3]), if "a delay in proceeding is occasioned by the conduct of the accused[,] he [or she] cannot justly be heard to complain nor be allowed a recompense for the period involved,?. Insofar as a claim for back pay for a period of suspension is concerned, the court held that an attempt to impede the administrative process for any significant period, as a result of which a prompt determination as statutorily intended has been prevented, will be deemed to be ?an abandonment of any claim to back pay".

Conversely, if the delay in excess of the statutory period is not attributable to the employee's actions, the employee is entitled to back pay even if such delay is beyond the control of the employer, and even if the employee is later found guilty of the charges and dismissed from employment.

The court concluded that Skrypek or his counsel had obstructed the disciplinary investigation by refusing to voluntarily release his medical records and this refusal prevented the appointing authority from obtaining the medical records relevant to Skrypek?s disciplinary proceeding. In view of this, the court held that Skrypek was ?the primary and underlying cause of the hearing's delay? and thus Skrypek was not entitled to back pay during the period exceeding the 30-day time limit set forth in Civil Service Law § 75 (3) until he was terminated on January 19, 2005.

Full post as published by New York Public Personnel Law on March 11, 2008 (boomark / email).