November 6, 2012
Vacating a finding of being guilty of two of five disciplinary charges requires remanding the matter for reconsideration of the appropriate penalty to be imposed
The appointing authority adopted the findings and recommendation of a hearing officer that the employee was guilty of five charges of misconduct and terminated the individual’s employment.
Supreme Court dismissed the former employee’s petition challenging 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. In the 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 individual was guilty of all five charges, the court said that the penalty imposed had to be vacated and the matter remit to the appointing authority to permit it to consider the appropriate penalty to be imposed upon the individual based on the individual having been found guilty of the three surviving charges
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein