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Using personnel records in setting a disciplinary penalty

By Harvey Randall, Esq.

Using personnel records in setting a disciplinary penalty
Levy v Workers' Comp. Board, App. Div., 2nd Dept. 292 A.D.2d 388

In the course of conducting a hearing, Workers' Compensation Board [WCB] Adminis­trative Law Judge Herbert L. Levy told a claimant's attorney to "shut up."

This resulted in disciplinary charges being filed against Levy alleging "misconduct and/or incompetence." The Board charged Levy with violating the Board's policy "that Board employees maintain a civil, courteous, respectful and professional attitude and practice." The Board offered to settle the disciplinary action if Levy accepted a ten-day suspension from work without pay.

Levy rejected the proposed settlement and his disciplinary grievance was submitted to arbitration in accordance with the terms of a collective bargaining agreement [CBA].

Arbitrator Max M. Doner found Levy guilty of misconduct and/or incompetence in the performance of his duties as an administrative law judge. The penalty imposed: a fine of $2,400, which award was confirmed by a State Supreme Court Justice Reynold N. Mason.

The Appellate Division, Second Department, sustained Justice Mason's ruling, comment­ing that the arbitrator found that Levy's behavior violated the WCB's policy and the Code of Judicial Conduct for Administrative Law Judges and that his award was neither irrational, violative of a strong public policy, nor in excess of his authority as the arbitra­tor.

The court also said that "[c]onsideration of other instances of misconduct in [Levy's] employment record does not provide grounds for vacatur," ruling that "the arbitrator properly considered [Levy's] entire record of employment in determining a penalty."

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that if an employee is found guilty of disciplinary charges, the employee's personnel history could be used to determine the appropriate disciplinary penalty to be imposed if:

1. The individual is advised that his or her personnel records would be considered in setting the penalty to be imposed; and

2. The employee is given an opportunity to submit a written response to any material included in his or her personnel file or be allowed to submit an explanation setting out "mitigating circumstances."

Full post as published by New York Public Personnel Law on January 29, 2008 (boomark / email).