Filing of disciplinary charges against an employee must timely

Filing of disciplinary charges against an employee must timely Transit Authority v Campbell, OATH Index No. 343/00 As a general rule, a statute of limitations continues to run with respect to the deadline for filing a timely action in the proper forum even if the complaint has been filed in a different, but incorrect, forum or notwithstanding the fact that another action is pending. This point was made clear to the Transit Authority when OATH Administrative Law Judge Ray Fleischhacker vacated Section 75 disciplinary charges it had filed against Colette Campbell as untimely. In 1996 the New York City Transit Authority reassigned Campbell to a lower grade position. Campbell filed an Article 78 petition claiming the action constituted a disciplinary demotion, in violation of her Section 75 rights to due process. The court agreed, finding the Authority's action constituted disciplinary action within the meaning of Civil Service Law Section 75. It was conceded that on August 16, 1996, without a hearing, and as a result of the events which form the basis for the charges in this case, the Authority reassigned the respondent from a Level II supervisor to a Level I supervisor, with a significant cut in pay. The Appellate Division rejected the Authority's argument that "its action was a transfer permitted by Personnel Director rules without resort to a hearing" [Campbell v NYC Transit Authority, 253 AD2d 813], holding that Campbell was entitled to a Section 75 disciplinary hearing. The Court of Appeals denied the Authority's petition to appeal on April 29, 1999 [93 N.Y.2d 805]. In July 1999 the Authority served Campbell with disciplinary charges setting out eight specifications of misconduct alleged to have occurred between May and August 1996. ALJ Fleischhacker, however, ruled that the agency's delay in serving the charges until appeals related to the 1996 Article 78 action had been exhausted meant that they were filed too late. Campbell contended that the statute of limitations in Section 75 began to run upon the commission of the alleged misconduct, was never tolled, and expired well before any charges were served. The Authority, on the other hand, argued that it was not until its effort to appeal the Appellate Division determination was denied by the Court of Appeals that it was obliged to serve charges. Civil Service Law section 75(4) provides that "[n]otwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges . . ., provided, however, that such limitation shall not apply where the incompetency or misconduct complained of and described in the charges, would, if proved in a court of appropriate jurisdiction, constitute a crime."* Pointing out that all the Authority had to do "to toll the statute of limitations was to draft and serve the revised charges" in 1996, Judge Fleischhacker found that the Authority was time-barred from proceeding against Campbell. Judge Fleischhacker said that a number of action could toll the running of the statute of limitations set out in Section 75, including: 1. An employee may be estopped to plead the Statute of Limitations where the employer was induced by fraud, misrepresentations or deception to refrain from filing a timely action;" 2. Where the misconduct constitutes "a continuing violation;" or 3. The parties can agree to extend limitations periods [but a court cannot, although a court order staying the disciplinary action tolls the running of the statute of limitations]. In contrast, the withdrawal of charges filed against an individual does not toll the statute of limitations insofar as "refilling such charges" at a later date is concerned. * The statute of limitations for State employees designated "managerial or confidential" within the meaning of the Taylor Law is one year except where the charges, if proved in a court of appropriate jurisdiction, constitute a crime, in which case the one-year limitation would not apply.

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