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Concerning name-clearing hearings

Concerning name-clearing hearings
Browne v City of New York, 2010 NY Slip Op 04583, Decided on May 25, 2010, Appellate Division, Second Department [Browne II]

In general, a name-clearing hearing is to provide an employee who claims that he or she has been ?stigmatized? by his or her employer with an opportunity to clear his or her name* The individual seeking such a hearing has the burden of proof in the proceeding.

Typically the individual seeks a name-clearing hearing if he or she believes that such alleged stigmatization has or will adversely affect his or her reputation in the community or his or her future employment opportunities.

As the Court of Appeals held in Matter of Stanziale, 55 NY2d 735, where it is alleged that the basis or reason for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name.

In 2005 Androniki Browne was serving as the provisional Director of Administrative Services with the New York City Employees? Retirement System. She was removed from this position without a hearing and placed in a lower grade position with the System, associate staff analyst.

Browne sued in an effort to obtain a court order compelling the appointing authority to give her a name-clearing hearing.

Although Supreme Court dismissed her petition, the Appellate Division modified the lower court?s determination and granted her petition with respect to its demand for a name-clearing hearing [Browne v City of New York, 45 AD3d 590, [Browne I].

The Browne I the Appellate Division explained that as Browne was a provisional employee, she could be demoted to her former position of associate staff analyst without a hearing in the absence of a showing that her demotion was in bad faith, or for a constitutionally impermissible purpose, or otherwise in violation of law.

The court then decided that there was a factual dispute regarding whether there was public dissemination of the statement Browne claimed was stigmatizing. Accordingly, said the court, Browne was entitled to a "name-clearing hearing to afford her the opportunity to prove that the stigmatizing material purportedly in her personnel file is false.?

Browne was then given with a name-clearing hearing conducted by an Administrative Law Judge designated by New York City's Office of Adminstrative Trials and Hearings [OATH].

The Administrative Law Judge decided that Browne did not meet her burden of proof.** Diane D'Alessandro, the System?s Executive Director, adopted the OATH Judge's findings and recommendation.

Browne appealed this action by the Executive Director [Browne II] but this time the Appellate Division dismissed her appeal. The Browne II court said that Browne had ?failed to negate the stated reasons for her demotion? and found that there was substantial evidence in the record to support the administrative law judge?s determination.

Randall comments: A name clearing hearing, it should be remembered, serves only one purpose - to provide the individual with an opportunity to clear his or her ?good name and reputation? in situations where he or she alleges that information of a stigmatizing nature has been made public by the employer.

Prevailing at a name-clearing hearing does entitle the individual to reinstatement or to reemployment in his or her former position. This means that being provided with a hearing and having thereafter cleared his or her name is, at best, all the relief an individual can expect.

In considering an individual?s right to a name-clearing hearing, the courts typically reject such an application if the individual fails to show that the employer had publicly disclosed the allegedly stigmatizing reasons for his or her dismissal or demotion.

Although in most instances name-clearing hearings are demanded in situations where the individual has been dismissed from his or her position, in one case the employee sought a name-clearing hearing following his ?coerced retirement.? The Appellate Division ruled that the individual was entitled to such a hearing [Murphy v City of New York, 35 AD3d 319].

Further, on the issue of ?public disclosure,? courts have ruled that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to agency administrators ?having a right to know? did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.

In another probationary termination case, Carlo v City of New York, 549 NYS2d 160, the Appellate Division, Second Department, ruled that a probationary police officer who had been terminated had failed to show that his termination was made in bad faith.

As to Carlo's demand for a name clearing hearing concerning his probationary termination, the court said that he did not show that he was entitled to such a hearing. The Appellate Division indicated that a name clearing hearing will be provided where it is shown that facts related to the termination have been publicly disseminated.

Carlo did not offer any evidence of such public dissemination. The opinion notes that "the mere possibility of dissemination in the future is only speculative and is insufficient to warrant a hearing."

In Bazemore v Koehle, 169 A.D.2d 574, the Appellate Division decided that inasmuch as a probationary employee may be discharged without a hearing of statement of the reasons for the termination so long as the discharge is made in good faith and without any constitutionally or statutorily impermissible motive, no defamatory impression was created and the discharged provisional employee is not entitled to a name clearing hearing.

On the issue of name-clearing hearings, the Commissioner of Education has held that "a public employee is entitled to a due process hearing to clear his or her name only when dissemination of the charges implicated the employee's good name, reputation, honor or integrity thereby foreclosing the employee's freedom to take advantage of other employment opportunities [Decisions of the Commissioner of Education #12785].

In order to be entitled to such a hearing, said the Commissioner, the individual must show that there has been a public disclosure of the stigmatizing charges.

In a similar case, Decisions of the Commissioner of Education 13538, the Commissioner found that the alleged derogatory statements were actually disseminated to the public by the former employee and not the school district, thereby defeating the individual?s possible entitlement to a name-clearing hearing.

In Donato v Plainview-Old Bethpage Central School District, 96 F.3d 623, the United States Court of Appeals, Second Circuit, held that although a non-tenured public employee typically is not entitled to notice and hearing if he or she is discharged during a probationary period, under certain circumstances the individual may be entitled to a "name-clearing hearing."

In this instance the court decided that Donato, who was terminated during her probationary period, was entitled to a name-clearing hearing because the statements made concerning her performance in the job "impugn [her] professional reputation in such a fashion as to effectively put a significant roadblock in [her] continued ability to practice his or her profession."

In Donato's case, said the court, her allegations had satisfied the test as the comments made concerning her performance were "... so harsh as to be likely to persuade any other school board not to hire [her] as a supervisor."

To summarize: New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who have been "stigmatized" as a result of ?State action? and the employer has made such "stigmatizing" information public.

What have the courts considered to be stigmatizing? "Name-clearing hearings" have been ordered in cases involving dismissals because of alleged mental instability, dishonesty, incompetence, rape and sexual molestation, narcotic addiction, being psychologically unfit, and misconduct involving public funds.

In addition, courts have ruled that a name-clearing hearing is warranted even if there has been no publication concerning the reason for the employee's dismissal in cases where it determines that discharging the employee for the reasons stated does, in fact, stigmatize the individual and may adversely affect the individual's prospects for future employment.

* Name-clearing hearings are usually requested by terminated employees provisionally or temporarily appointed to their position or individuals that have permanently or contingently permanently appointed to their position but terminated after completing their minimum period of probation but prior to the end of their maximum period of probation.

** Browne v Employees' Retirement System, OATH Index No. 1696/08. The OATH Administrative Law Judge found that Browne?s testimony in her own defense was inconsistent and was contradicted by the credible testimony of several of her co-workers, who testified that she was, indeed, involved in an affair with her supervisor although she denied being so involved.

The decision in Browne I is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_08456.htm

The decision in Browne II is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04583.htm

Full post as published by New York Public Personnel Law on June 03, 2010 (boomark / email).