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An employee?s suspension without pay may extended if the delay in an administrative disciplinary action is caused by the accused

An employee?s suspension without pay may extended if the delay in an administrative disciplinary action is caused by the accused
Matter of Skrypek v Bennett, 31 AD3d 827, reversed, 7 NY3d 919

May an employee, in the course of a disciplinary hearing, be removed from the payroll after he or she has already been suspended without pay for up to the thirty days authorized by Section 75 of the Civil Service Law? As the Skrypek decision demonstrates, yes, if he or she unreasonably acts to delay the proceeding.

But, as the Court of Appeals opined in Skrypek?s appeal, ?hen both the employer and employee are equally responsible for the delay in a disciplinary hearing, the employee may not properly be considered to have waived his right to back pay.?

State Trooper Randall R. Skrypek challenging his suspension without pay pending disciplinary action following an off-duty incident in which he misrepresented to 911 operators and police investigators that he had been assaulted and robbed.

The Appellate Division ruled that although the Civil Service Law provides that an employee against whom charges of misconduct are pending may be suspended without pay for a period not exceeding 30 days (see Civil Service Law §75 [3]), if "a delay in proceeding is occasioned by the conduct of the accused[,] he [or she] cannot justly be heard to complain nor be allowed a recompense for the period involved.?

Insofar as a claim for back pay for a period of suspension is concerned, the court held that an attempt to impede the administrative process for any significant period, as a result of which a prompt determination as statutorily intended has been prevented, will be deemed to be ?an abandonment of any claim to back pay".

Conversely, if the delay in excess of the statutory period is not attributable to the employee's actions, the employee is entitled to back pay even if such delay is beyond the control of the employer, and even if the employee is later found guilty of the charges and dismissed from employment.

The court concluded that Skrypek or his counsel had obstructed the disciplinary investigation by refusing to voluntarily release his medical records and this refusal prevented the appointing authority from obtaining the medical records relevant to Skrypek?s disciplinary proceeding.

In view of this, the court held that Skrypek was ?the primary and underlying cause of the hearing's delay? and thus Skrypek was not entitled to back pay during the period exceeding the 30-day time limit set forth in Civil Service Law §75(3) until he was terminated.

The Court of Appeals, however, concluded that here the employer and the employee ?are equally responsible for the delay in a disciplinary hearing? and thus Skrypek ?may not properly be considered to have waived his right to back pay? where both he and the employer were guilty of ?delaying the procedure.?

The Appellate Division?s decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2006/2006_05257.htm

The Court of Appeals ruling is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2006/2006_09663.htm

Full post as published by New York Public Personnel Law on April 14, 2010 (boomark / email).