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Appointing authority must diligent in avoiding even the appearance of any personal involvement in make a disciplinary determination

Appointing authority must be diligent in avoiding even the appearance of any personal involvement in make a disciplinary determination
Matter of Baker v Poughkeepsie City School Dist., 2010 NY Slip Op 04184, decided on May 11, 2010, Appellate Division, Second Department

The Board of Education of the Poughkeepsie City School District, after receiving and adopting the findings and recommendations of a hearing officer, dismissed Jeffrey Baker from his position.

The hearing officer had found Baker, the District?s Business Manager, guilty of eight charges of misconduct and, or, incompetence.

Baker challenged the Board?s action complaining that in the course of the disciplinary hearing, two members of the Board testified and subsequently the Board, including the members who had testified at the disciplinary hearing, issued a final determination adopting the hearing officer's findings and recommendations, and terminating his employment.

The Appellate Division sustained Baker?s appeal, annulled the Board?s determination and remanded the matter back to the Board for its reconsideration, excluding the members of the Board of Education of the Poughkeepsie City School District who testified at the disciplinary hearing.

The court charged the Board with [1] reviewing the findings and recommendations of the hearing officer; [2] determining of the amount of back pay and benefits owed to the Baker, if any, and [3] making for a new determination with respect the charges and the penalty, if any, to be imposed.

The decision notes that ?Due to their personal involvement in the matter, the two members of the Board who testified at the disciplinary hearing should have disqualified themselves from reviewing the recommendation of the hearing officer and acting on any of the charges.?

This is so in order to avoid any question as to the impartiality. In Informal Opinions of the Attorney General, 99-21, 7/19/99, the Attorney General, considering the impartiality of a disciplinary tribunal, said that this ?is a critical element in any disciplinary action ? even the appearance of any impropriety must be avoided.

Here the Attorney General concluded that a trustee should recuse herself as a member of the disciplinary tribunal because ?the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.? Under the circumstances the Attorney General concluded that ?there is at least an appearance of impropriety? and thus the trustee should recuse herself and ?should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding?.?

Another example: The Appellate Division annulled the dismissal of Saratoga County?s director of data processing, who had been found guilty of sexual harassment and incompetence [Ernst v Saratoga County, 234 AD2d 764.] The court concluded that Ernst had been denied a fair and impartial tribunal because the Chair of the County Board of Supervisors had (a) met with the county?s attorneys ?to discuss the pending investigation;? (b) met with the employees involved; (c) signed the notice of the charges against Ernst; (d) voted to bring charges against Ernst; (e) served as a witness at the disciplinary hearing and (f) voted to accept a hearing officer?s findings of guilt and impose the recommended penalty.

As the Appellate Division directing the Board to determine if any back pay and, or, benefits were due Baker, in another case, Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, the Court of Appeals ruled that that "[a] disciplinary proceeding will be voided and the status quo ante restored when there has been some error that taints the entire proceeding ? such as [lack of] jurisdiction or bias of the presiding officer?."

In the event the disciplinary decision is annulled, such back salary and benefits are to be paid to the individual even if the subsequent determination is that the employee is guilty of one or more charges and the penalty imposed dismissal.

The Baker decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04184.htm

Full post as published by New York Public Personnel Law on May 17, 2010 (boomark / email).