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Disciplinary hearing conducted in absentia

Disciplinary hearing conducted in absentia
Matter of Burkhalter, Commissioner?s Decision 13979

In most disciplinary cases a hearing will go forward even if one of the parties refuses to participate. More often than not it is the accused employee who declines to appear before the hearing officer. Occasionally the employer refuses to participate.

In the Burkhalter case, it was the school district that decided not to reply to an appeal filed with the Commissioner of Education by a teacher who complained that she had been unlawfully terminated. As the decision indicates, declining to submit an answer under such circumstances is risky.

Mary L. Burkhalter told her principal that she had been receiving papers, book and furniture coated with chemicals, which made her sick. Eventually her concern became so great that she refused to pick up school materials placed in her mailbox ?for fear of being poisoned.?

The superintendent ordered Burkhalter to report for a mental/medical evaluation. After she failed to appear, charges of insubordination were filed against her pursuant to Section 3020-a and she was suspended without pay ?until such time as she reported for a medical examination.?

Burkhalter filed a grievance alleging that she had been wrongfully suspended without pay. The grievance was settled when the district agreed to pay her about one month?s salary. Burkhalter then resigned and the pending disciplinary action was dismissed as moot.

Burkhalter, however, appealed to the Commissioner of Education, claiming that she had been wrongfully terminated. She contended that she had been forced to submit her resignation because of harassment, the filing of wrongful accusations and her suspension without pay. She asked the Commissioner to hold a hearing, seeking reinstatement and back salary.

The school district ignored the proceeding, despite being told of the consequences of its failing to respond to Burkhalter?s allegations. Failing to respond meant that the Commissioner would be required to deem all the statements set out in Burkhalter?s appeal and its attachments as ?true statements? [8 NYCRR 275.11]. But for a technicality, Burkhalter probably would have prevailed as the district did not submit any rebuttal to her claims.

The technicality: the Commissioner dismissed her appeal as untimely because she did not file it within 30 days ?from the making of the decision or the performance of the act complained of ....? Untimely appeals must be dismissed unless ?excused by the Commissioner for good cause shown.?

The Commissioner said that the appeal was filed more than three years after Burkhalter submitted her resignation and she did not provide any excuse for her delay. Further, the Commissioner pointed out that ?ignorance of the appeal process and its time limitations is not a sufficient basis to excuse a delay in the filing of the appeal.?

The point here is that had Burkhalter?s appeal been timely, or her lateness excused, the Commissioner?s decision would have been made solely on the representations set out in Burkhalter?s papers and attachments. Because the district elected not to submit any rebuttal for the Commissioner to consider, he would have been required to accept all of Burkhalter?s statements as true.

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If you are interested in learning more about disciplinary actions please click here: http://thedisciplinebook.blogspot.com/2009/03/discipline-book.html ============================================

Full post as published by New York Public Personnel Law on March 25, 2010 (boomark / email).