Designating a disciplinary hearing officer

Designating a disciplinary hearing officerPieczonka v Village of Blasdell, 273 AD2d 842 If nothing else, the Pieczonka demonstrates the importance of the parties dotting all of the i's and crossing all of the t's in processing a disciplinary action brought pursuant to Civil Service Law Section 75. The Town of Blasdell served Robert Pieczonka with disciplinary charges. It later wrote to him informing him of the date, time and location of the hearing and the name of the hearing officer. The hearing officer found Pieczonka guilty and the Town terminated him. Pieczonka appealed, contending that his termination was unlawful because: 1. The Village failed to comply with Section 75(2) of the Civil Service Law since it had not designates the hearing officer in writing; 2. The determination made by the hearing officer was not supported by substantial evidence; and 3. The penalty imposed was excessive. The Appellate Division never got to consider Pieczonka's second and third arguments because it ruled that the disciplinary action taken by the Town had to be annulled because the procedure was defective: the hearing officer had not been so designated in writing. Citing Wiggins v Board of Education, 60 NY2d 385, the court said that "[i]n the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee." Section 75(2), in relevant part, provides that the hearing of charges preferred against an employee shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose. The Appellate Division rejected the Town's contention that its written notice to Pieczonka advising him of the name of the hearing officer and the time and place of the hearing constituted the required written delegation of authority. A failure to comply with the written notice requirements set out in Section 75(2) may have other serious consequences. In Perez v NYS Dept. of Labor, 244 AD2d 844, the Appellate Division, Third Department, annulled a Section 75 disciplinary determination because there was no evidence that the hearing officer who presided over his disciplinary hearing had been so designated in writing. The court ordered Perez reinstated to his former position with back salary and benefits. Perez then asked for attorney fees and expenses, contending that as the prevailing party, he was entitled to such payments under Section 8601 of the Civil Practice Law and Rules. A State Supreme Court justice agree and awarded Perez $19,907.84, $9275 of which was for Perez's legal expenses incurred in the Section 75 administrative disciplinary action. The Labor Department appealed. The Appellate Division sustained the lower court's ruling. It specifically rejected the department's argument that its failure to designate the hearing officer in writing was a mere technicality and its actions that ultimately resulted in Perez's termination were otherwise substantially justified. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department's appeal challenging the Supreme Court's decision. ==================== Now available, the 2011 edition of The Discipline Book, a concise guide to disciplinary actions involving public employees in New York State. For more informeation about this 1272 page electronic book [e-book], click on http://thedisciplinebook.blogspot.com/ ====================

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