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The Discipline Book

 
The Discipline Book is a searchable 448 page electronic handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law.


Professor Mitchell H. Rubinstein, New York Law School, in his recent review of this work, said:

This book remains ‘the’ treatise on public sector employee discipline in New York State and I could not imagine any employer or union side practice without it. The book outlines the Civil Service Law, Section 75 cases, Education Law 3020-a cases as well as a whole host of other cases. It is basically an A-Z book on discipline.”


The Discipline Book addresses such issues as due process, Education Law 3020-a hearings, Civil Service Section 75 hearings and disciplinary actions taken pursuant to collective bargaining agreements, the appellate process, evidence, drug testing, provisional and probationary appointments and other important areas involving, or related to, the disciplinary process.


The e-book's complete Table of Contents is set out below


If you wish to use a credit card for your purchase, you may do so with PayPal or your own credit card using the secure link in the upper right to process your payment by credit card.

The price of this electronically searchable e-book is $120

In the alternative, you may order your copy of The Discipline Book by sending your name, the name of your organization, its mailing address and telephone number, a purchase order number [if used] and your e-mail address to:


or you may mail your organization's purchase order form to:

Public Employment Law Press
887 Birchwood Lane
Schenectady, NY, 12309-3119




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Table of Contents

INTRODUCTION
Appointment to positions in New York State’s Civil Service

The Classified Service

The Unclassified Service

Public Benefit Corporations

Employment of retired public employees


CHAPTER 1 - DUE PROCESS RIGHTS OF EMPLOYEES

1.01 Due process rights depend on appointment status and jurisdictional classification

1.02 Who is entitled to due process?

1.03 Who has no due process rights?

1.04 Due process rights under §3020-a

1.05 The concept of tenure

1.06 “Permanent” appointments, probation and tenure in the competitive class

1.07 Permanent vs. probationer vs. provisional

1.08 Probationers’ due process rights

1.09 Temporary and provisional appointments

1.10 Jurisdictional misclassification

1.11 Budgetary classification irrelevant to due process rights of employees

1.12 Rights of employees of quasi-government entities

1.13 Veterans’ due process rights

1.14 Impartial tribunals

1.15 Specificity of charges

1.16 Immunity from discipline

1.17 Right to predetermination hearing

1.18 Ambiguity of language in Taylor Law agreements

1.19 Right of appeal and timeliness

1.20 Absence from hearings

1.21 Notice of hearings

1.22 Name-clearing hearings

1.23 Due process and optional hearings

1.24 Removal by operation of law

1.25 Suspension without pay

1.26 Authority to discipline

1.27 Pending criminal matters

1.28 Double jeopardy

1.29 Civil rights

1.30 First Amendment rights

1.31 Freedom of information

1.32 Public hearings

1.33 Disciplinary action based on pre-employment misconduct

1.34 Retirement to avoid disciplinary action


CHAPTER 2 - CONDUCTING AN INVESTIGATION

2.01 Overview: disciplinary investigations

2.02 Handling complaints

2.03 Anonymous allegations

2.04 Fairness in investigations

2.05 Interviewing employees

2.06 Refusal to answer questions

2.07 Free speech

2.08 Self-incrimination and immunity

2.09 Lying by employees

2.10 Statute of limitations on discipline

2.11 Legal representation during investigations

2.12 Suspension with or without pay

2.13 Effect of criminal actions on suspensions

2.14 Impact of criminal action on disciplinary action, generally

2.15 Voluntary resignations

2.16 Issuing subpoenas, recording evidence

2.17 Informants

2.18 Evidence

2.19 Recording investigation findings

2.20 Record-keeping

2.21 Defamation of employees


CHAPTER 3 - EVIDENCE

3.01 Forms of evidence

3.02 Hearsay evidence

3.03 Standard of proof: criminal v disciplinary hearing

3.04 Standard of proof, §75

3.05 Standard of proof, §3020-a

3.06 Effect of criminal conviction or dismissal on discipline

3.07 Testimony by the accused

3.08 Best evidence rule

3.09 Tainted evidence

3.10 Confessions and coercion

3.11 Competent and incompetent witnesses

3.12 Opinion evidence

3.13 Foundation for testimony

3.14 Credibility of witnesses

3.15 Conflicting evidence

3.16 Employee surveillance

3.17 Judicial notice

3.18 Disclosure of personal records

3.19 Unsealing criminal records

3.20 Standard of conduct

3.21 Admissions

3.22 Source of documentary evidence

3.23 Privileged communications

3.24 Using polygraph tests in disciplinary actions

3.25 Pitfalls for that a hearing officer must avoid.


CHAPTER 4 - PROPOSING A PENALTY

4.01 The Pell standard

4.02 Court review

4.03 Lawful penalties

4.04 Recommending penalties

4.05 Using the individual’s employment history in disciplinary action

4.06 Indemnification

4.07 Expiration of the penalty

4.08 Whistle blower protection

4.09 Determining the penalty to be imposed

4.10 Due Process and Progressive Discipline

4.11 Substantial Evidence

4.12 The Pell Standard of Fairness

4.13 Reasons Courts Reject Penalties

4.14 Violations of the Pell standard

4.15. Penalty: reprimand

4.16 Loss of leave credits and other alternative penalties

4.17 Penalty: fine

4.18 Penalty: suspension...

4.19 Penalty: demotion

4.20 Time and attendance issues

4.21 Examples of penalties imposed


CHAPTER 5 - NEGOTIATED DISCIPLINARY PROCEDURES

5.01 Negotiating disciplinary procedures

5.02 Notice of discipline

5.03 The “Bill of Rights” in contracts

5.04 Absence from work during disciplinary activities

5.05 Duty of fair representation

5.06 Procedures under contracts

5.07 Reassignments

5.08 Settlement

5.09 Pre-hearing suspensions


CHAPTER 6 - FILING CHARGES UNDER §75

6.01 Key procedural elements

6.02 Charges must be specific

6.03 Employee must receive opportunity to respond

6.04 Right to union representation

6.05 Statute of limitations

6.06 Serving charges

6.07 Pitfalls to avoid

6.08 Criticism is not discipline

6.09 Admission of guilt difficult to retract

6.10 Pending criminal charges

6.11 Choice of law


CHAPTER 7 - FILING CHARGES UNDER §3020-A

7.01 Statute of limitations

7.02 Need for investigatory report regardless of merit of allegations

7.03 Risk of libel or slander as a result of investigatory report

7.04 Name-clearing hearings

7.05 Pitfalls to avoid

7.06 Criticism is not discipline

7.07 Procedures in filing charges

7.08 Use of school attorney

7.09 Verdict shopping

7.10 The §3020-a process

7.11 Informing the Commissioner

7.12 Hearing panel members

7.13 Pre-hearing conferences

7.14 Characteristics of arbitration


CHAPTER 8 - SUSPENDING EMPLOYEES PENDING A HEARING

8.01 Suspension without pay – general considerations

8.02 Suspensions with pay, §§72 and 75

8.03 “Emergency” Suspensions

8.04 Suspension without pay, generally

8.05 Suspension without pay of unlicensed individual

8.06 Suspension without pay in the event of postponement of disciplinary proceeding

8.07 Suspension of a school superintendent

8.08 Unpaid suspension past 30 days

8.09 Suspension without pay, ordered medical examination

8.10 Suspension without pay

8.11 Effect of criminal actions on suspensions

8.12 Mitigation of damages

8.13 Taxation of a settlement

8.14 Recoupment of cash advances

8.15 Bad faith

8.16 Employment contracts

8.17 Suspension with pay, pending criminal action

8.18 Reassignment pending discipline

8.19 Suspension without pay failure to report to work

8.20 Repayment of salary after being continued on the payroll


CHAPTER 9 - PENDING CRIMINAL ACTIONS

9.01 Simultaneous prosecution

9.02 Acquittal of criminal charges does not bar disciplinary action

9.03 Criminal conviction bars administrative acquittal of the same charge

9.04 Use of disclosures in criminal trials

9.05 Probationers and criminal charges

9.06 Reinstatement after acquittal

9.07 Settlement to avoid prosecution

9.08 Administrator’s immunity

9.09 Collateral estoppel

9.10 Disclosure of records


CHAPTER 10 - PREPARING FOR A HEARING

10.01 The settlement option

10.02 Selecting a hearing officer

10.03 Pre-hearing legwork

10.04 A pre-hearing checklist

10.05 Hearing in absentia

10.06 Leave to attend hearing

10.07 Mitigation of damages in cases of acquittal

10.08 Taxation of a settlement

10.09 Independent review of facts

10.10 Considering material in a post-hearing brief submitted by a party

10.11 Stay of arbitration


CHAPTER 11 - APPEALS

11.01 Who may appeal?

11.02 What may appeals concern?

11.03 What standards apply in appeals?

11.04 Forums for appeal

11.05 Challenging a §75 decision

11.06 Challenging an arbitration award

11.07 Biased hearing officers

11.08 Deadlines for appeal

11.09 Timely and untimely appeals

11.10 Outcomes of appeals

11.11 Vacating or modifying penalties: The Pell Standard

11.12 Back pay and benefits

11.13 Statute of limitations

11.14 Back salary


CHAPTER 12 - NON-DISCIPLINARY TERMINATIONS

12.01 Termination for disability

12.02 §73 pre-termination due process requirements

12.03 Arbitrating §71 and §73 terminations

12.04 Other provisions of law

12.05 Considering disability claims

12.06 Termination of a probationary employee

12.07 Appointment to an “original position” from an eligible list deemed a resignation


CHAPTER 13 - TERMINATIONS WITHOUT A HEARING

13.01 Necessity of a license

13.02 Removal by operation of law

13.03 Disqualification for employment because of a criminal conviction

13.04 Irrelevance of criminal history

13.05 Removal after convictions

13.06 Contract violation

13.07 Denial of equal protection?

13.08 Employees-at-will

13.09 Withdrawing resignations

13.10 Name-clearing hearings

13.11 Noncompetitive class employees

13.12 Disqualification, §50.4 CSL

13.13 Nature of the offense

13.14 Violation of oath of office

13.15 Reversal of felony conviction


CHAPTER 14 - REDRESS AND REMEDIES

14.01 Delays in reinstatements

14.02 Back pay

14.03 Reinstatement


CHAPTER 15 - DRUGS, DRUG TESTING AND DISCIPLINE

15.01 Reasonable suspicion

15.02 Pre-employment testing

15.03 Due process guidelines

15.04 Guidelines on employee privacy

15.05 Observer’s presence during testing

15.06 Drug testing and collective bargaining

15.07 Penalties

15.08 Refusal to participate in a drug treatment program

15.09 Libel and slander

15.10 The ADA and human rights laws


CHAPTER 16 - SOME SPECIAL PROVISIONS OF LAW


CHAPTER 17 - PROVISIONAL AND PROBATIONARY EMPLOYEES

17.01 Tenure of provisionals by operation of law

17.02 Tenure

17.03 Reviewing probationary employee terminations

17.04 “Permanent probationers”

17.05 Standard of review

17.06 Bad faith determinations

17.07 Separation pay for probationary teachers

17.08 Disciplinary probation

17.09 Light duty and probationary requirements

17.10 Drug use and probation

17.11 Probation and alcoholism

17.12 Probation and stress

17.13 Extension of probation: modified duty

17.14 Traineeships

17.15 Extensions of the probationary period

17.16 Attaining permanent status

17.17 Date of permanent appointment and traineeships

17.18 Non-competitive class employees

17.19 Good faith determinations concerning probationary service

17.20 Notice of termination

17.21 Second probationary periods

17.22 Good faith probationary decisions

17.23 Name-clearing hearings

17.24 Tenure by operation of law

17.25 Transition from probationer to tenured

17.26 Suspension of a probationer

17.27 Rights under a Taylor Law agreement


CHAPTER 18 - SELECTED CASE REFERENCES

18.1 Selected case references


SUPPLEMENT 1 - AMENDMENTS TO THE EDUCATION LAW INCLUDED IN THE

GOVERNOR'S BUDGET BILL


ABOUT THE AUTHORS .................................................................................... 447



























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