Challenges to the validity of the appointment of hearingofficer, consideration of hearsay evidence and allegations of the denial due process
McKenzie v Board of Educ. of the City Sch. Dist. of Albany, 2012 NY Slip Op07258, Appellate Division, Third Department
The employee was advised of the identity of theHearing Officer who was appointed to preside over the §75 disciplinary hearing in writing and a disciplinary hearing was conducted by the designated Hearing Officer..
The Hearing Officer found the individual guilty of thecharges and specifications filed against him and recommended the individual beterminated from his position. The School District accepted the Hearing Officersfindings and recommendation and the individual was terminated.
The employee appealed, contending that [1] the HearingOfficer's appointment was invalid because School District had failed to providehim with the official notice of the Hearing Officer's designation; [2] he wasdenied due process because he did not receive adequate notice of the chargesthat had been filed against him; and [3] hearsay evidence was admitted andconsidered by the Hearing Officer.
Addressing each of the individual’s arguments, the AppellateDivision said:
1. Civil Service Law §75(2) requires that a hearing uponcharges of misconduct "shall be held by the officer or body having thepower to remove the person against whom such charges are preferred, or by adeputy or other person designated by such officer or body in writing for thatpurpose." The Appellate Division said that these requirements of Civil Service Law §75(2) aresatisfied by a written record of such designation, such as . . . a letter tothe hearing officer advising him or her that the official designation has takenplace," citing. Matter of Arthur v Soares, 95 AD3d 1619.
The court explained that such a letter, along with other exhibits, including theSchool District’s resolution appointing the Hearing Officer, constituted a written record sufficiently documenting the validity ofthe Hearing Officer's appointment and satisfied the relevant provisions ofCivil Service Law §75(2).
2. As to the individual’s claim that he was denied dueprocess, the Appellate Division said that “Due process requires that ‘a noticeof charges must reasonably apprise the accused of the claim being made so thatan adequate defense may be mounted,’ and any disciplinary determination mustaddress the accusations as set forth in this statement of charges.”
The court saidthat this requirement was satisfied by the written notice charging the individual withmisconduct, which stated that the allegations were based on circumstances thatresulted in his arrest….” and the seizure by the police of crack cocaine fromhis person at the time of his arrest.*
3. The court found that the School District’s determinationthat the individual was guilty of misconduct was supported by substantialevidence and the Appellate Division, citing James v Hoosick Falls CentralSchool District, 93 AD3d at 1133, said “[c]ontrary to petitioner's contention,hearsay evidence is admissible in such administrative proceedings."
Finding that the penalty imposed — termination — was not "sodisproportionate to the offense . . . as to be shocking to one's sense offairness," the Appellate Division dismissed the appeal commenting “otherincidents of misconduct that occurred during the 10-year period he was employedby the school district, including numerous arrests … provided amplejustification for the decision that he be terminated.
* The court also noted thatalthough evidence was presented at the hearing regarding the individual's pastcriminal record and other employment issues, “that evidence was relevant todetermine the penalty to be imposed if petitioner was found guilty of thecharges filed against him.”
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07258.htm
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