On March 22, 2012, in the Matter of Baker v. Poughkeepsie City School District, 2012 NY Slip Op 02126, No. 54 (N.Y. 2012), the New York Court of Appeals issued a ruling that has the potential to cause public employers substantial grief, aggravation, and uncertainty in prosecuting and ultimately sustaining disciplinary charges brought against public employees.
Best practices remind us that employers must exercise great caution in investigating, drafting, and prosecuting disciplinary charges. With this latest ruling, the Court of Appeals has set a possible trap for the unwary, one which could subject a municipality to a substantial back pay award when a seemingly proper and just determination is vacated by the courts.
In this matter, Jeffrey Baker, a business manager for the Poughkeepsie City School District, was charged with eight counts of “misconduct and/or incompetence” in the performance of his job, pursuant to Civil Service Law Section 75. The district’s school board appointed a hearing officer to preside over the disciplinary proceedings, and two of those board members testified regarding certain charges or issues raised by the charges. The hearing officer recommended that Baker be found guilty of the charges and terminated. The district’s school board — including the two witnesses — adopted the hearings officer’s findings and recommendations and discharged Baker.
In its opinion last week, the Court of Appeals concluded that the participation of the two school board members in the disciplinary process and their later vote to accept the hearing officer’s recommendation was improper. The court concluded that persons in such a circumstance are required to disqualify themselves from subsequently acting upon any of the charges related to the hearing.
The court ruled, “where a witness is testifying during a disciplinary hearing concerning charges levied against an individual, disqualifying himself or herself from reviewing the recommendations of the hearing officer and rendering a final determination is appropriate.” Applying this standard, the court determined that the two testifying board members should have recused themselves. The court thus affirmed the lower court’s decision annulling the board’s determination and remanding for reconsideration without participation of the two testifying board members.
A three-member minority of the court issued a stongly worded dissent, highlighting the likely negative consequences of the ruling. The minority noted that nothing will now prevent “industrious attorneys … from subpoenaing pertinent members of the governing boards to proffer testimony …, thereby obtaining disqualification of members who they expect to vote counter to the interests of their clients.” The minority was plainly concerned that such tactical brinksmanship may follow in the wake of this decision.
Public employers must now take even greater care in presenting cases where individuals on a governing board have knowledge of a matter or are otherwise required to testify to support disciplinary charges. Public employers and their representatives should limit the participation of board members to only those essential, critical matters where their participation is absolutely required. Given the court’s broader ruling, failing to do so may only expose the municipalty to a back pay award.
If you have questions about how this may impact your organization, please contact Matthew C. Van Vessem (716.566.5476; firstname.lastname@example.org), Sean P. Beiter (716.566.5409; email@example.com), or another member of the Goldberg Segalla Labor and Employment Practice Group.