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Employee cannot be found guilty of misconduct not alleged in the disciplinary charges filed against the employee

Employee cannot be found guilty of misconduct not alleged in the disciplinary charges filed against the employee
Mayo v Personnel Review Bd. of the Health & Hosps. Corp, 2009 NY Slip Op 06224, Decided on August 18, 2009, Appellate Division, First Department

Keith Mayo was employed by the Health and Hospitals Corporation [HHC] as a supervisor of stock workers. As a result of an altercation between Meyo and one of his subordinates, HHC preferred two charges against petitioner.

The first charge stated that Mayo had ?assaulted" the subordinate; the second charge stated that Mayo?s conduct "was unbecoming and unprofessional of a corporate employee and supervisor when you assaulted" the subordinate.

The administrative law judge determined that, although the altercation occurred, HHC failed to establish that Mayo initiated or willingly participated in it, and she recommended that the charges be dismissed. HHC, however, rejected the conclusion of the ALJ that Mayo did not initiate the fight, determined that he did initiate it and assaulted the subordinate, and terminated his employment.

Mayo appealed HHC?s Personnel Review Board [PRB]. The PRB sustained HHC?s decision to terminate Mayo but it did not base its determination on a finding that Mayo initiated the altercation or assaulted the subordinate. Instead PRB concluded that Mayo had a duty to report immediately the incident to the HHC police (or his superiors). Finding that he failed to report immediately the incident, the PRB upheld HHC's decision to terminate Mayo's employment.

Mayo filed an Article 78 proceeding seeking to annul the PRB's determination and to be reinstated to his position with HHC, asserting that the PRB violated his due process rights by upholding HHC's decision to terminate his employment on a ground of misconduct that was never charged ? failing to report immediately the altercation.

Supreme Court found that PRB's determination was founded on uncharged misconduct and therefore violated Mayo's due process rights and annulled PRB's determination. The court remanded the matter to the PRB to dismiss the charges against Mayo and reinstate him to his position.

In response to HHC?s appeal, the Appellate Division said ?We agree with Supreme Court that [Mayo?s] due process rights were violated because the PRB affirmed HHC's decision to terminate [his] employment based on uncharged misconduct.?

The Appellate Division cited Matter of Murray v Murphy, 24 NY2d 150 as controlling in this case, noting that the Court of Appeals had ruled that:

The first fundamental of due process is notice of the charges made. This principle equally applies to an administrative proceeding for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged . . . A public employee has a claim to due process and he may assume that the hearing will be limited to the charges as made. His lawyer is likewise entitled to prepare for the hearing in reliance that, after the hearing is concluded, the charges will not be switched. Any other course is a violation of the employee's right to be treated with elemental fairness.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06224.htm

Full post as published by New York Public Personnel Law on September 01, 2009 (boomark / email).