Motion to delay disciplinary actionpending the outcome of a criminal investigation denied
OATH Administrative Law Judge Ingrid A.Addison denied a pre-trial motion made by a public employee to stay herdisciplinary proceeding pending the outcome of a criminal investigation.
Judge Addison ruled that there was no constitutional barto moving forward with the disciplinary action, where, as here, criminalcharges had not yet been brought.
The employee, in effect, was asking for an indeterminatestay. Such stays are disfavored, said Judge Addison, because the employer has an interest in the promptresolution of misconduct allegations and having the employee against whomdisciplinary charges, or someone else, fulfill the job responsibilities.
Below are selected excerpts from The Discipline Book* [an e-book published by the Public Employment Law Press, 2012, 1476 pages] concerning the relationshipof administrative disciplinary actions and criminal proceedings based on the same alleged acts or omissions. They arereprinted here with permission:
Pendingcriminal matters:
1. " ... Chaplin v NYC Department of Education, 48 A.D.3d 226, isanother example. Here the Appellate Division said that an employee was notentitled to a stay of the disciplinary case as a criminal defendant does nothave a right to stay a related disciplinary proceeding pending the outcome oftrial, citing Watson v City of Jamestown, 27 AD3d 1183. Denial of such a staydoes not adversely affect the employee’s constitutional rights.
2. " Theappointing authority has no obligation to postpone disciplinary action even if the county District Attorney requests administrative action bepostponed. This was the point made by the court in Levine v New York CityTransit Authority, 70 AD2d 900 (2nd Dept 1979), affirmed 49 NY2d 747 (1980). [See also 2.14: “Impact of criminal action on disciplinary action”.]
3. "A[Taylor Law] contract may … prohibit disciplinary action in the face of pendingcriminal charges. Although not so stated in law, the courts have ruled thatSection 75 proceedings need not be postponed because a criminal action isalready pending or may soon be commenced.
4. "Mayadministrative disciplinary action be prosecuted at the same time that acriminal action based on the same facts and allegations is pending? Yes. See,for example, the decisions of the court in Nosik v Singe, 40 F.3d 592, (unnecessary to delayadministrative disciplinary action in a case of a school psychologist accusedof defrauding insurance companies) and Matter of the Haverstraw-Stony PointCSD, 24 Ed. Dept. Rep. 466, (no requirement to adjourn a Section 3020-a hearingwhen parallel criminal proceedings are underway)."
* For information about The Discipline Book , click on http://booklocker.com/books/5215.html
The NYC Department of Homeless Servicesv Simmons decision is posted on the Internet at:
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