Procedural Error in Disciplinary Hearing Process Entitles Employee to Four Years of Back Pay and Benefits
In what one of the concurring Justices termed “an excessive burden to impose on the County for a procedural error,” the Court of Appeals ruled that it was compelled, based upon its prior determinations, to rule that the petitioner was entitled to recover four years worth of back pay and that “the problem is one that only the Legislature can fix.” In Gomez v. Stout, petitioner worked as an Assistant Games Manager at Rye Playland – an amusement park owned by the County of Westchester and in May 2002, she was served with formal disciplinary charges alleging 43 acts of misconduct and/or incompetence. At the subsequent disciplinary hearing, her employer, James Stout, Commissioner of Westchester County Parks, Recreation and Conservation and members of his family testified about an alleged incident that occurred at Rye Playland’s skating rink in April 2002. The Hearing Officer sustained all 43 charges and recommended the petitioner be terminated from employment.
As Stout and his family members testified at the hearing, Stout designated Ralph Butler, the Commissioner of Westchester County Department of Public Works, to review the hearing record and to render the final determination. Butler agreed with the Hearing Officer’s recommendation and determined that petitioner should be terminated. By letter dated November 2, 2005, Stout notified petitioner of Butler’s determination.
Petitioner commenced an Article 78 proceeding challenging her termination and seeking retroactive reinstatement of her employment to the County payroll effective November 2, 2005 (the date of termination). Under CPLR § 7804(g), the Supreme Court transferred the matter to the Appellate Division.
The Appellate Division annulled the determination terminating petitioner’s employment on procedural grounds. The Court ruled that although Stout properly disqualified himself, he erred by designating Butler to act as his agent as the only individual authorized the act in his absence was Stout’s Deputy Commissioner. Accordingly, the Appellate Division remitted the matter back to Commissioner Stout for the appointment of a “duly-qualified individual authorized to review” the Hearing Officer’s recommendation. The Court did not address the issues of whether petitioner was entitled to reinstatement or back pay and benefits, nor did it conduct a substantial evidence review since it annulled the determination solely on jurisdictional grounds.
The Court of Appeals granted both sides leave to appeal and modified the Appellate Division’s order. Relying upon Civil Service Law § 75(2) which provides that an employee disciplinary proceeding “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 office,” the County asserted that Stout’s recusal and the designation of “Butler was necessary in order to avoid the appearance of impropriety and that Stout’s designation of Butler was lawful.” The Court of Appeals, however, ruled that Civil Service Law § 75(2) contemplated that a delegation, if necessary, be made “within the governmental department’s chain of command” and declined to expand the “judicially created exception to allow a personally involved officer or body unfettered discretion to designate a municipal department head with no supervisory authority over the affected employee.” Thus, the Court of Appeals ruled that the Appellate Division correctly annulled Butler’s determination and remitted the matter to Stout to appoint a duly-qualified individual – the Deputy Commissioner – to render a determination on the same hearing record.
Nonetheless, the Court of Appeals took it one step further than the Appellate Division by addressing petitioner’s claim for back pay and benefits. The County argued that any award of back pay and benefits should await the determination of Stout’s new designee and should not be awarded at all unless the new penalty imposed, if any, is less severe than termination. The Court of Appeals disagreed finding that petitioner is entitled to be reinstated with back pay and benefits. In reliance upon it prior decisions (Wiggens v. Board of Educ of City, 60 N.Y.2d 385 [1983]; and Sinicropi v. Bennet, 60 N.Y.2d 918 [1983]), the Court of Appeals explained that when there is a procedural error that “taints the proceeding,” a disciplinary proceeding will be voided and the “status quo ante restored” thereby entitling petitioner for back pay between the earlier and later termination decisions. Accordingly, in reliance upon these two prior decisions, the Court ruled that petitioner was entitled to back pay, even if the proceedings against her “eventually lead to termination of her employment.”
Justice Smith issued the concurring decision stating that although he joined in the Court of Appeal’ unanimous opinion, he wrote “to express my unhappiness with the result we are forced to reach.” Justice Smith explained that if the Hearing Officer’s termination recommendation is upheld, “petitioner will still get back pay for the four years following her dismissal – four years during which she has not done a day’s work for the County” and therefore, Justice Smith stated that “this is surely an excessive burden to impose on the County for procedural error.” Justice Smith, however, stated that the “result is compelled” by the Court of Appeals’ past decisions, which decisions seemed wrong to not only him but the Appellate Division Justice (Appellate Division Justice O’Connor) that wrote the Appellate Division Sinicropi decision who, though believing himself bound by precedent, pointed out the prior decisions “allowing back pay in situations like this unjustifiably expand the relief that would have been available at common law.” Justice Smith noted that Appellate Division Justice O’Connor argued that back pay should not be honored even if the employee’s dismissal is declared invalid and that Justice O’Connor urged the Court of Appeals to “re-examine” its prior analysis, which the Court of appeals declined to do. Justice Smith stated “I think this was a mistake, but there is nothing we can do about it now. The problem is one that only the Legislature can fix”
