Supervisor's performing employee's duties while employee suspended pending a criminal investigation leads to additional disciplinary chargesMatter of Covert v Schuyler County, 2010 NY Slip Op 07861, Decided on November 4, 2010, Appellate Division, Third Department Beth E. Covert was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that she had asked a neighbor to lie to law enforcement officials conducting a criminal investigation of Covert. Covert was suspended from her duties as a probation officer as a result of the criminal investigation and her supervisor assumed responsibility for her pending probation case files. In the course of the supervisors handling Covert's cases, the supervisor found a number of irregularities and deficiencies relating to Covert's record keeping and supervision of probationers These finding resulted in additional §75 charges being filed against Covert. As a result of these additional charges, Covet was also found guilty of incompetence. Based on the findings of misconduct and incompetence, together with her prior unsatisfactory service and her failure to take responsibility for her acts and omissions, the Schuyler County Administrator terminated Covert's employment. When Covert sued seeking to vacate the Administrator's determination the Appellate Division dismissed her petition stating that it would not disturb the Administrator's determination made following a hearing pursuant to Civil Service Law § 75 as long as it supported by substantial evidence. As to the charges alleging Covert had asked a neighbor to lie on her behalf, Covert's supervisor testified that Covert had admitted to him that she had asked the neighbor to lie for her and then declared that "it's not like asking someone to lie for you is against the law." Covert, in contrast, testified that she had neither made such an admission nor asked anyone to lie. This conflict in testimony, said the Appellate Division, was resolved against Covert by the Administrator and it will not substitute the court's own credibility determinations for those of the Administrator, As for the determination of incompetence, the evidence established that despite Covert's position as the designee responsible for transfers, she was unaware of the travel restrictions and written policies governing interstate transfers. Further, her incompetence with respect to the handling of a convicted sex offender on probation was also documented by evidence reflecting her continued failure to require the probationer to complete sex offender therapy. Further, said the Appellate Division, charges of incompetence relating to Covert's failure to properly use the computerized systems and failures in record keeping are also supported by substantial evidence. Finally, the court rejected Covert's argument that the statute of limitations barred certain of the charges, holding that "given the continuous nature of the incompetence," such an argument is "unavailing." In the light of the findings in the disciplinary action and the fact that a prior letter of reprimand had been placed in Covert's personnel file,* the Appellate Division said that the penalty of termination "is not so disproportionate to the offense as to be shocking to one's sense of fairness." * In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer "mitigating circumstances." The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07861.htm NYPPLPL
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