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Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint
Armata and United Federation of Teachers, 30 PERB 4713

Rebeca Armata elected not to attend the scheduled PERB hearing. Her complaint was dismissed on the grounds that she had failed to prosecute it. Armata then filed charges with PERB alleging that the United Federation of Teachers had violated its duty of fair representation.*

Armata had boycotted a PERB hearing. She had asked PERB?s Administrative Law Judge [ALJ], Angela M. Blassman, to issue nine subpoenas to compel the attendance of witnesses she wished to question such as the school district?s director of personnel, UFT officers and others. Blassman issued a subpoena for one of the witnesses but denied Armata?s other requests.

Armata told the ALJ that she objected to Blassman?s decision and said that ?if PERB changes its position (and issues the remaining subpoenas) ... we?ll be happy to attend the hearing.? When Armata failed to appear, the UFT [and the School District] moved to dismiss the charges based on Armata?s failure to appear.

Blassman, characterizing Armata?s action as a ?failure to prosecute,? granted the motion, commenting that Armata ?flatly refused to appear for the hearing unless I changed my ruling regarding her subpoena requests.?

Blassman?s rationale for the dismissal was that ?a party?s intentional refusal to appear at a hearing unless PERB rules in that party?s favor evidences an intentional disregard of PERB?s process and leaves me no choice but to dismiss the charge.? According to Blassman, ?to hold otherwise would improperly allow a party, instead of PERB, to control the conduct of PERB?s proceedings and would permit a party to hold PERB and all other parties hostage to that party?s requests.?

The case raises the question: What should a party do if the ALJ declines to rule in its favor concerning procedural issues such as issuing a subpoena? The answer is simple. The proper course of action is for the party to proceed with the hearing and prosecute, or defend, the charge. If necessary, the party could appeal the ruling to PERB, including the denial of any of its procedural motions by the ALJ.

* The New York City Board of Education was also involved in this case as a ?statutory party pursuant to Section 209-a.2 of the Civil Service Law? and had filed an answer denying all of Armata?s material allegations.

Full post as published by New York Public Personnel Law on August 24, 2010 (boomark / email).