The Discipline Book -- For Administrators, Union Officials and Attorneys involved in public personnel law in New York State

2009-03-21T12:37:00.000-07:00

The Discipline Book

A Concise Guide to Discipline
in the
New York State Public Service

1528 pages

An electronic book

2012 Edition

The Discipline Book is a 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.

In his review, Mitchell H. Rubinstein, Adjunct Professor of Law, St. John's University, said:

"... The Discipline Book remains the best comprehensive authority in New York public sector labor and employment law. It extensively discusses, like no other work, such diverse topics as due process, employee discipline, Education Law 3020-a hearings, Civil Service Section 75 hearings, the appellate process, First Amendment issues, defamation, evidence, drug testing, provisional and probationary appointments as well as the Taylor Law. As an added bonus, a separate section of the book contains case summaries of leading cases together with links to the decision on the internet and links to Education Law 3020-a forms and time-tables."

CHAPTERS ADDRESS THE FOLLOWING SUBJECTS

[The entire Table of Contents is set out below]

Due process rights of employees
Conducting an investigation
Evidence
Proposing a disciplinary penalty
Obligations of employers and unions[under negotiated Taylor Law disciplinary procedures]
Filing charges under Civil Service Law Section 75
Filing charges under Education Law Section 3020-a
Suspending employees pending a hearing
Disciplinary action a pending criminal actions
Preparing for a disciplinary hearing
Appeals
Non-disciplinary terminations
Terminations without a hearing
Drugs, drug testing and discipline

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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:

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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

CHAPTER 1
DUE PROCESS RIGHTS OF EMPLOYEES

Part One: Who is entitled to due process?

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 Section 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

Part Two: Forms of due process

1.14 Impartial tribunals
1.15 Specificity of charges
1.16 Immunity from discipline
1.17 Right to pre-determination 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

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 Affect 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 vs. disciplinary hearing
3.04 Standard of proof, Section 75
3.05 Standard of proof, Section 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 Whistleblower 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
OBLIGATIONS OF EMPLOYERS AND UNIONS
UNDER NEGOTIATED DISCIPLINARY PROCEDURES

5.01 Notice of discipline
5.02 The “Bill of Rights” in contracts
5.03 Absence from work during disciplinary activities
5.04 Duty of fair representation
5.05 Procedures under contracts
5.06 Reassignments
5.07 Settlement
5.08 Pre-hearing suspensions

CHAPTER 6
FILING CHARGES UNDER Section 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 Section 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 Section 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, Sections 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: Conflict with local law
8.09 Suspension without pay, medical
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 Section 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 Section 73 pre-termination due process requirements
12.03 Arbitrating Section 71 and Section 73 terminations
12.04 Other provisions of law
12.05 Considering disability claims
12.06 Termination of a probationary employee

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, Section 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
17.28 Distinguishing between temporary and provisional appointment

CHAPTER 18

Case Summaries

Special Supplements

The “letter of agreement” from NYC Department of Education Chancellor Klein to UFT President Michael Mulgrew concerning disciplinary actions taken against New York Department of Education personnel pursuant to §3020-a of the Education Law.

Education Law Section 3020-a - Timetable & Forms