Labor & Employment Law

Representation in a disciplinary hearing

By Harvey Randall, Esq.

Representation in a disciplinary hearing
Sam v Metro-North Commuter Railroad, App. Div., 1st Dept., 287 A.D.2d 378

One of the issues in the Sam v Metro-North Commuter Railroad was Sam's contention that he was denied administrative due process because a union representative rather than an attorney served as his representative at a disciplinary hearing.

Carlson Sam, an employee of Metro-North Commuter Railroad (Metro-North), was discharged from his employment for conduct unbecoming a Metro-North employee and failing to comply with a lawful order of a Metro-North police officer. The Special Board of Adjustment, which reviewed the disciplinary administrative tribunal's trial and determination, sustained Sam's being found guilty and the penalty imposed, dismissal.

The decision states that Sam was found guilty of leaving his assigned post and becoming involved in an altercation with a homeless man whom he though had stolen his car radio. The altercation, in which both plaintiff and the homeless man brandished weapons, spilled over into the terminal and into the track area of the station. Sam refused to obey the orders of Metro-North Police present during the incident, and Metro-North police officer Barreto had to physically removed the weapon from Sam's control and wrestle him to the ground and arrested him.

In reaching its decision, the Board noted multiple reasons justifying Sam's termination, including the fact that he left his assigned post, engaged in a violent altercation, refused a police officer's lawful order to lay down his weapon, and engaged in conduct requiring his forcible arrest. As to the penalty of dismissal, the Board found that termination was warranted since Sam, who only had three years of seniority, had already been disciplined several times previously.

Sam then sued Barreto and Metro-North asserting claims of assault, false arrest, false imprisonment, malicious prosecution, defamation, as well a claim that his 42 USC 1983 civil rights were violated.

As to Sam?s assertions concerning the lack of counsel, the Appellate Division agreed that he was not represented by an attorney at his administrative trial. However, said the court, "here the absence of counsel is not determinative since [Sam] was represented by a union official whose competence and experience were amply demonstrated by the trial record."

The union representative "thoroughly questioned the various witnesses, raised appropriate objections, and requested a continuance to present additional witnesses, a request that was granted." This, in the view of the court, provided Sam with appropriate representation for the purposes of satisfying administrative due process in a disciplinary setting.

Note: Section 75.2 of the Civil Service Law provides that an individual against whom disciplinary charges have been preferred may be represented by an attorney or by a representative of a recognized or certified collective bargaining organization.

Full post as published by New York Public Personnel Law on March 27, 2008 (boomark / email).