Entering a plea of Nolo Contendere in an administrative disciplinary action

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Entering a plea of NoloContendere in an administrativedisciplinary actionAppealof T.B., Decisions of the Commissioner of Education, Decision #16,385
Oneof the issues in the Appeal of T.B. concerned the student’s attorney entering aplea of “no contest” or nolo contendere* in response to certain allegations ofmisconduct filed against the student by the school district.
Although New York State does not provided for the accused in a criminal proceeding to advancea nolo contendere plea [People v. Daiboch, 265 NY 125], as the courtnoted in Kasckarow v Board of Examiners, [33 Misc 3d 1028; appeal pending, Second Department, 2011-11569],“the fact that a defendant in a criminal action does not technically admitguilt in a nolo contendere plea has not prevented New York fromrecognizing that a nolo contendere plea from another jurisdictionconstitutes a conviction for the purposed of sentencing a defendant as a secondfelony offender.”
Further, New York recognizes so-called “Alford pleas” (NorthCarolina v. Alford, 400 U.S. 25), which are similar to nolo contenderepleas in that the Court of Appeals has recognized that, from the New YorkState's perspective, an Alford plea is no different from any other guilty plea,and may be used for the same purposes as any other conviction.**
New York courts have occasionally addressed a plea nolocontendere or “no contest” in administrative actions. For example, in Dowerv. Poston, 76 Misc.2d 72, such a plea was a factor in resolving thedisqualification of an individual for appointment to a position in thecompetitive class.
Dower had entered a plea of nolo contendere to onecount of the indictment found against him in which he was charged conspiracy todefraud the United States. Sentenced to imprisonment, his sentence toimprisonment was suspended and he was placed on probation for a period of threeyears. When Dower challenged hisdisqualification for appointment to the position pursuant to §50.4(d) of theCivil Service Law based on his having been “convicted of a crime,” SupremeCourt ruled that “It is clear … that [Dower] in his application incorrectly andimproperly stated that he had never been convicted of an offense despite theannouncement for the position indicated that “conviction of a felony will bar,and conviction of a misdemeanor may bar examination and appointment”.Accordingly, said the court, his disqualification for appointment to theposition by the Civil Service Commission was a proper exercise of discretionunder the statute.
The Commissioner of Education has considered the impact ofpleas of “no contest” in a number of student disciplinary actions.
With respect to the appeal of T.B., T.B.’s then-counsel toldthe hearing officer that the school district had agreed to drop three of the 4charges filed against the student and would only pursue one of the charges,“Charge 3.” T.B.’s counsel then submitted a plea of “no contest” on thestudent’s behalf.
The hearing officer said that as the student was “pleadingno contest, as Hearing Officer, then I just will find him guilty of just theone charge.”  T.B.’s counsel disagreed with the guilty determination,stating that the student was neither “admitting or denying [the charge]”, just “notcontesting the charge.”  No witnesses or additional documents wereintroduced or entered into the record by either party and, after learning thatthe student had no prior disciplinary history, the hearing officer “referredthe matter to the superintendent for a determination of any additionalpenalties.”
Among the issues raised by T.B. in this appeal to theCommissioner of Education was the claim that Charge 3 was “too vague andinsufficient to apprise [the student] of the activities giving rise to thehearing” and that the school district “produced no evidence of [the student’s]guilt and that the ‘no contest’ plea is not an admission and is insufficientproof of guilt.”
With respect to these issues, the Commissioner ruled:
1. The charges in a student disciplinary proceeding needonly be “sufficiently specific to advise the student and his counsel of theactivities or incidents which have given rise to the proceeding and which willform the basis for the hearing;”
2. Where a student admits the charged conduct, the admissionis sufficient proof of guilt; and
3. The record reveals that, although represented by counsel,T.B. failed to raise the issue of “vagueness” before the hearing officer at thehearing and, in fact, agreed to enter a plea with no such objection.  
Accordingly, the Commissioner held that as T.B. “failed atthe hearing to dispute the specificity of the remaining charge and also failedto enter [the student’s] written statements into the record, [as] neither theissue of vagueness nor those documents were properly part of the record beforethe board … they may not now be considered as part of this appeal.
As to T.B.’s argument that the “no contest” plea submittedon the student’s behalf was neither sufficient proof nor an admission of thestudent’s guilt, and claimed that the hearing officer erred in finding thestudent guilty, the Commissioner disagreed, noting that although “New YorkState Criminal Procedure Law does not provide for a ‘no contest’ plea.” … [n]evertheless, the courts have recognized that an individual’s ‘no contest’plea amounts to ‘an admission of the facts as charged,” citing Kufs v State ofNew York Liquor Authority, 637 NYS2d 846 at 847.
In Kufs, said the Commissioner, the court ruled that “[b]yentering [his] ‘no contest’ plea, petitioner waived [his] right to a review ofthe facts upon which the punishment was imposed.”
Finding that there was nothing in the record, nor did T.B.argue that the student’s “no contest” plea was not entered in a voluntary,knowing and intelligent manner, the Commissioner said that there was no reasonto annul the hearing officer’s determination.

Other decisions in which the Commissioner considered a plea of “no contest” include:

Decision No. 16,101 [http://www.counsel.nysed.gov/Decisions/volume50/d16101.htm];

Decision No. 15,841 [http://www.counsel.nysed.gov/Decisions/volume48/d15841.htm];Decision No. 15,122 [http://www.counsel.nysed.gov/Decisions/volume44/d15122.htm];Decision No. 14,529 [http://www.counsel.nysed.gov/Decisions/volume40/d14529.htm];Decision No. 14,305 [http://www.counsel.nysed.gov/Decisions/volume39/d14305.htm]; andDecision No. 14,217 [http://www.counsel.nysed.gov/Decisions/volume39/d14217.htm]

* NoloContendere, is Latin for "I will not contest it." It appears thatthe only New York statute in which the term is referenced is found in the NewYork Public Health Law. §4655.2.h.(iv)(A) of the Public Health Law provides, in pertinent part,“...  has been convicted of a crime or pleaded nolo contendre[sic] to a felony charge, or been held liable or enjoined in a civil action byfinal judgment if the criminal or civil action involved fraud, embezzlement,fraudulent conversion, or misappropriation of property [emphasis supplied].”
** Matter of Silmon, 95 N.Y.2dat 475,
Thedecision in the Appeal of T.B. is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html


N.B. A LawBlog focusing on NoloContendere is posted on the Internet at:http://www.nolocontendere.org/historyofnolo.html