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Disciplinary charges filed in an earlier disciplinary action in which the employee was found not guilty considered in a subsequent disciplinary action

Disciplinary charges filed in an earlier disciplinary action in which the employee was found not guilty considered in a subsequent disciplinary action
Hoffmann v Department of Educ. of City of N.Y., 22 Misc 3d 1105(A), Affd., 21 A.D.3d 493

Education Law § 3020-a (4) (b) requires that charges of which the employee has been acquitted be expunged from his or her "personnel records." The Hoffmann decisions explore the legislative intent in enacting this provision and concludes that ?It was permissible for the arbitrator to examine the prior charges to determine whether the [individual] had notice that such conduct was inappropriate,? notwithstanding the fact that the individual was acquitted of such charges.

The New York City Board of Education filed disciplinary charges against Howard Hoffmann pursuant to Education Law § 3020-a (1). It sought to terminate Hoffmann on the bases on allegations that he had "engaged in inappropriate conduct and conduct unbecoming his profession." In the course of the disciplinary hearing the Board moved to enter into the hearing record evidence of a prior, 1999, § 3020-a hearing and decision wherein Hoffman was accused and acquitted of charges substantially similar to those under consideration in this disciplinary hearing. The Board?s argued that it could do so to demonstrate that Hoffmann had prior notice of unacceptable conduct.

Hoffmann objected, contending that Section 3020-a provides that when a teacher is exonerated of charges, the record shall be expunged from his or her personal files and that the Hearing Officer erred in allowing and considering such evidence.

Supreme Court disagreed, holding that although ?Education Law § 3020-a evinces a legislative intent to preserve confidentiality? such confidentiality is maintained only while a disciplinary proceeding is pending. Supreme Court concluded that such confidentiality does not survive ?final determination.? In the words of the court, ?Accordingly, certain files, though otherwise confidential, may be subject to disclosure to the general public pursuant to, inter alia, the Freedom of Information Law.

The court also distinguished between expunging such information from an individual?s ?personal records? and the employer "retain[ing] necessary information in another [confidentially kept] file for use as a shield in any proceeding brought against them" by [the individual] or by other persons arising out of the incident or incidents leading to the charges themselves.

The Appellate Division agreed, holding that ?Contrary to [Hoffmann?s] contention, the arbitrator did not exceed his power in allowing into evidence prior similar charges against [him] which had been dismissed.? Noting that ?[a]n arbitrator is not governed by the substantive or evidentiary rules which prevail in courts of law,? the Appellate Division ruled that it was permissible for the arbitrator to examine the prior charges to determine whether Hoffmann had notice that such conduct was inappropriate.

Full post as published by New York Public Personnel Law on March 10, 2010 (boomark / email).