Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, June 27, 2013

Employee terminated following a disciplinary hearing after receiving counseling memoranda regarding serious and specific deficiencies in her job performance

Kuznia v Adams2013 NY Slip Op 03369, Appellate Division, Third Department
An individual [Petitioner] commenced her employment with the County Probation Department in 1979 and in 2004 was named as the Department's deputy director. When the Department’s director retired, Petitioner “effectively was in charge of the Department” until a new director was named in August 2010.

Although prior to serving as the Department's deputy director Petitioner had consistently received positive performance evaluations,* in March 2010 the County Administrator sent Petitioner a "letter of counseling" raising a number of concerns regarding her leadership, supervisory and time-management skills. Petitioner was encouraged to "immediately make every effort to improve [her] management skills" and was warned that her failure to do so could result in a loss of her employment.
In October 2010, Petitioner received a second counseling notification — this time in the form of a memorandum from the newly appointed director. The director noted, among other things, Petitioner's  failure to timely submit various state-mandated reports and surveys to the Department's oversight agency.
Subsequently it was found that there were significant past deficiencies and omissions in the operation of the Department during Petitioner's tenure as deputy director and  was served with disciplinary charges in March 2011 pursuant to Civil Service Law §75 alleging various acts of misconduct. The Hearing Officer sustained the bulk of the charges and specifications filed against Petitioner and recommended Petitioner's "dismissal from service [as] the only viable solution."

The County Administrator adopted the Hearing Officer's findings and recommendation and terminated Petitioner’s employment. Petitioner appealed, challenging the County Administrator’s decision and asked the court to direct her reinstatement as deputy director of the Department with back pay.
The Appellate Division affirmed the County Administrator’s determination, explaining that "[T]he standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole.”
The Appellate Division noted that [1] Credibility determinations solely within the province of the Hearing Officer and that it may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented and [2] a finding of incompetence only requires evidence of some dereliction or neglect of duty.
As to the issue of penalty, the Appellate Division said that it was “well settled” that it would set aside the penalty imposed "only if it is so disproportionate as to be shocking to one's sense of fairness."
Despite the Appellate Division's considering Petitioner's many years of service and her prior positive performance evaluations, the court said that it did not find the penalty of termination to be shocking to its sense of fairness, explaining that in this instance “the record reflects that although Petitioner twice was warned regarding serious and specific deficiencies in her job performance, she continued to exercise poor professional judgment with respect to, among other things, the management, training and supervision of [Department personnel].
Further said the court, “The record … illustrates that Petitioner's neglect of her duties — particularly with respect to her failure to implement certain policies and/or comply with mandated reporting requirements — not only created what [Department’s director] aptly described as ‘a huge public safety issue,’ but also exposed the County to liability.” 

* According to the decision, written performance evaluations of the Petitioner ceased after 2004 because the then County Administrator “preferred to personally conduct yearly evaluations in his office.”

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Arbitration Law, Public Sector Employment Law | Permalink


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