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Employee personnel files used to set penalty

By Harvey Randall, Esq.

Employee personnel files used to set penalty
Pettengill v Sissman, NYS Supreme Court, Justice Vincent J. Reilly, Jr., [see 267 A.D.2d 767]

The employer decides to introduce an employee's personnel file in the course of a Civil Service Law Section 75 disciplinary proceeding. May it do so? This was the critical issue in the Pettengill case.

New York State Department of Health Associate Budget Analyst Donald Pettengill was dismissed after being found guilty of eight acts of incompetence and insubordination. Claiming that the Section 75 hearing officer had unlawfully considered materials contained in his personnel file in determining the penalty to be recommended to the appointing authority, Pettengill asked his attorney to appeal.

Pettengill's basis for appeal: the hearing officer considered his prior work history and previous performance evaluations "reciting deficiencies in [his] work similar to those for which the charges were based." This, Pettengill contended, meant that he had been "prosecuted for five years of misconduct" in violation of the time limits for initiating disciplinary action set out in Section 75.

The appeal was not timely filed due to "law office failure" and Pettengill sued his attorney for malpractice. As Sissman conceded that his law office was at fault, Justice Reilly granted "partial summary judgment" to Pettengill.

Justice Reilly then considered Sissman's motion to dismiss Pettengill's complaint. Sissman's theory: even if the appeal were timely filed, Pettengill would have lost the case. Justice Reilly agreed and granted Sissman's motion to dismiss as well. The court observed that:

1. The rules of evidence followed in court proceedings are not controlling in processing an administrative disciplinary action;

2. The determination of guilt must be based on proof of the specific charges filed against the employee pursuant to Section 75;

3. Matters not charged could not be considered at the Section 75 disciplinary hearing; and

4. Past misconduct recorded in the employee's personnel file may be considered in the determining the penalty to be imposed for more recent acts of misconduct charged and proven at the hearing.

According to the ruling, Pettengill had be given "ample notice, time and opportunity ... to challenge the contents of his personnel file." Justice Reilly ruled that the hearing officer did not abuse her discretion when she considered Pettengill's personnel file for the limited purpose of imposing a disciplinary penalty after she found Pettengill guilty of incompetence and insubordination.

Thus, said Justice Reilly, granting Sissman's motion to dismiss the malpractice action filed against him by Pettengill, was appropriate as:

In other words, because the Appellate Division would have sustained the appointing authority's Section 75 decision even if Pettengill's appeal had been timely filed by Sissman, the court concluded that Pettengill could not substantiate the elements of his cause of action for legal malpractice.

Perhaps the leading case concerning the use of an employee's personnel records in disciplinary procedures is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470.

In Bigelow the Court of Appeals held that if a civil service employee is found guilty of misconduct, a public employer may consider material included in the employee's personnel files in determining the appropriate sanction. The employee, however, must first be advised of the information in his or her personnel record that the appointing authority will consider in determining the penalty and then must be given an opportunity to submit a written response concerning that information.

Full post as published by New York Public Personnel Law on March 26, 2008 (boomark / email).