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Proof of employee?s criminal conviction admissible in disciplinary arbitration

Matter of State of New York Off. of Mental Health v New York State Correctional Officers & Police Benevolent Assn., Inc., 46 A.D.3d 1269, Appellate Division, Third Department

In June 2004, Taras Neznanyj, an employee of Office of Mental Healt [OMH], was arrested on charges of assault in the third degree and official misconduct for allegedly slapping and punching a patient at one of OMH?s facilities.

OMH also served Neznanyj with administrative disciplinary charges alleging that he was guilty of 11 separate instances of misconduct involving the slapping and punching of the patient, as well as speaking to the patient in a loud and inappropriate manner, threatening the patient to forestall reporting of the incidents and encouraging two other patients to take the blame for striking the patient.

In December 2004, following a jury trial on the criminal charges, Neznanyj was convicted of assault in the third degree and official misconduct.

In March 2005, disciplinary arbitration hearings commenced regarding Neznanyj?s alleged misconduct. The arbitrator preliminarily ruled that he would not hear evidence regarding the outcome of the criminal trial. He limited his consideration to a review of transcripts from the trial and the testimony of 13 witnesses regarding the incidents.

Following the disciplinary arbitration hearing, the arbitrator determined that Neznanyj was guilty of speaking to the patient in a loud and inappropriate manner. He dismissed the remaining charges ten charges. The penalty imposed: a three-day suspension without pay for the one sustained charge.

OMH appealed, seeking to have the arbitrator?s award vacated. Although Supreme Court confirmed the award, the Appellate Division, with a dissent by Judge Mugglin, reverse the lower court?s ruling and vacated the award. Judge Mugglin would have affirmed the arbitrator?s ruling, hold that ?It was within the arbitrator?s power to determine that he would not consider the criminal convictions because they were not the basis for the charges in either notice of discipline, and to conduct a de novo review of the incidents. Moreover, [said Judge Mugglin] excluding the certificates of conviction does not exclude pertinent and material evidence on the issue of the employee?s alleged misconduct.?]

The Appellate Division said that the arbitrator ?exceeded his power and committed misconduct? when he excluded pertinent and material evidence, which resulted in an irrational factual conclusion.

The court pointed out that a jury had found Neznanyj guilty ?beyond a reasonable doubt? of crimes of official misconduct and assault in the third degree in connection with these incidents: i.e., slapping and punching a patient at one of OMHs facilities

The arbitrator, however, refused to admit proof of Neznanyj?s convictions into evidence at the arbitration. He, instead, conducted a de novo hearing on the same issues.

The Appellate Division commented that ?[w]hile arbitrators do not act irrationally or exceed their authority by giving collateral estoppel effect to criminal judgments, an arbitrator?s failure to recognize and accept judgments of conviction and give them preclusive effect in subsequent proceedings is irrational.?

In this instance, said the court, the arbitrator acted irrationally and committed arbitral misconduct by not admitting proof of Neznanyj?s criminal convictions which directly related to the charged employee misconduct and conclusively resolved the question of whether he committed that misconduct.

Noting that although the preclusive effect of criminal convictions may mandate a finding of employee misconduct, the arbitrator is still able to select the appropriate penalty based upon that misconduct, giving due consideration to any public policy implications, the Appellate Division vacated the arbitration award and remit the matter to the arbitrator for a determination of the appropriate penalty to be imposed Neznanyj.

In a criminal case the standard of proof is more stringent than in an administrative disciplinary hearing: the prosecutor must prove guilt beyond a reasonable doubt. A guilty plea or verdict in a criminal case means that the employee is automatically guilty of parallel charges brought in an administrative disciplinary proceeding stemming from the same underlying events.

If a jury finds a person guilty beyond a reasonable doubt of, say, larceny, a disciplinary hearing officer need hear no other evidence to render a verdict of guilty regarding a parallel charge of theft in an administrative disciplinary proceeding. The decision in Kelly v Levin, 440 NYS2d 424, illustrates this proposition, i.e., the ?beyond a reasonable doubt? requirement of the criminal action satisfies a higher standard than is required to be met to establish guilt in an administrative disciplinary forum, i.e. the less rigorous standard of substantial evidence or even less demanding ?preponderance of the evidence? standard.

New York courts have held that a criminal conviction is res judicata [a decided matter] with respect to guilt in any administrative disciplinary action taken against an individual based on the same event or misconduct. As the court noted in Nezanayj:

In such cases administrative tribunals do not have the option of determining that the accused individual is ?innocent? of the charges. Its only leeway available to the administrative tribunal is in recommending or imposing a penalty.

The Kelly decision demonstrates this. Kelly, a school business administrator, was charged with larcenies of school funds and bringing discredit upon the school district. An [old law] Section 3020-a hearing panel found Kelly guilty of the charge of bringing discredit upon the district, but found him not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being charged under Section 3020-a [People v Kelly, 72 AD2d 670].

The court ruled that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. As the hearing panel?s decision was based solely on a finding of guilt of ?bringing discredit? charge, the matter was remitted to the panel for a new penalty to be assigned.

On the other hand, a finding of ?not guilty? in a criminal proceeding does not prevent the holding of an administrative disciplinary hearing. A person can be found not guilty beyond a reasonable doubt in a criminal action and still found guilty under the standard of substantial evidence or preponderance of the evidence in an administrative disciplinary proceeding.

Finally, the appointing authority has no obligation to postpone disciplinary action even if a county District Attorney requests that the administrative disciplinary action be postponed. This was the point made by the court in Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747.

Full post as published by New York Public Personnel Law on May 23, 2008 (boomark / email).