Vacating a finding of being guilty of two of five disciplinarycharges requires remanding the matter for reconsideration of the appropriate penalty to be imposed
The appointing authority adopted the findings and recommendationof a hearing officer that the employee was guilty of five charges of misconductand terminated the individual’s employment.
Supreme Court dismissed the former employee’s petitionchallenging the appointing authority’s action.
The Appellate Division disagreed with this result,explaining that upon its review of the record it found that the hearing officer's finding the individual guilty of two of the five charges had to be annulled and those two charges dismissed. Inthe opinion of the court, there was a lack of substantial evidence to support a finding that the employee was guilty of these two charges.
As the appointing authority had imposed a penalty based on the hearing officer’s finding that the individualwas guilty of all five charges, the court said that the penalty imposed had tobe vacated and the matter remit to the appointing authority to permit it to considerthe appropriate penalty to be imposed upon the individual based on theindividual having been found guilty of the three surviving charges
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06608.htm
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