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.
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Public Employment Law Press
887 Birchwood Lane
Schenectady, NY, 12309-3119
Schenectady, NY, 12309-3119
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Table of Contents
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
10.05 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
