Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Timeliness of evidence

Timeliness of evidence
Wojewodzic v O'Neill, App. Div., 3rd Dept., 295 A.D.2d 670

Section 75.4 of the Civil Service Law requires that disciplinary action against an individual be initiated within eighteen months of the occurrence of the alleged act or acts of incompetency or misconduct except in cases where the alleged incompetency or mis­conduct charged would, if proved in a court of appropriate jurisdiction, constitute a crime.

[N.B. Except for acts that would constitute a crime, the statute of limitations for State employees designated managerial or confidential pursuant to the Taylor Law is one year after the occurrence of the alleged act or acts of incompetency or misconduct.]

In the Wojewodzic case the Appellate Division considered an interesting aspect of Sec­tion 75.4: Does Section 75.4 support or imply imposing a statute of limitations with respect to evidence produced in course of the Section 75 disciplinary hearing?

John J. Wojewodzic was terminated from his position after being found guilty of several charges of misconduct including charges that he:

Knowingly made false statements concerning an alleged sexual affair involving two Essex County officials;

Deliberately provided false answers during the investigation concerning certain of the charges;

Created a hostile work environment while on duty and engaging in violent and disrup­tive behavior while off duty; and

Conducted himself in a manner unbecoming a staff development coordinator by using loud, rude, abusive, racist and sexist language in relation to other employees.

Wojewodzic appealed, contending that "the charges sustained against him should be dismissed because they are based upon evidence outside the Statute of Limitations appli­cable in Civil Service Law Section 75 proceedings." The Appellate Division said that, as a general rule, disciplinary charges had to be filed within eighteen-months of the alleged wrongdoing.

However, with respect to charges [referred to as Charges 6 and 7,] concerning Wojewod­zic's alleged creating a "hostile work environment" and his alleged engaging in "behavior unbecoming a staff development coordinator," the court held that the record indicated that many of the underlying incidents alleged by Essex County in support of these two charges "involved wrongdoing occurring outside the 18-month period."

Essex, on the other hand, contended that the testimony of witnesses concerning these "untimely events was for the purposed of demonstrating a pattern of behavior and was, therefore, admissible in accordance with the Court of Appeals' ruling in Block v Am­bach, 73 NY2d 323.

The Appellate Division decided that while such evidence may be admissible under cer­tain circumstances, it could not allow such untimely proof to stand in this case because "it is unduly prejudicial."

According to the ruling, many untimely incidents were relied on in concluding that Wojewodzic was guilty of the charges filed against him. Conceding that "many of the timely incidents were also referenced," the court said that the problem here was that "there is simply no way of knowing to what extent the remote allegations influenced the determination of guilt herein."

The court decided that it would be appropriate to remit the matter to the county for the purpose of a new hearing as to Charge 6 and the remaining specifications of Charge 7 without consideration of the untimely allegations.

In contrast to the prohibition against using "time-barred incidents" to bolster charges of misconduct or incompetence, the appointing authority may consider "stale or untimely incidents" inappropriate for the purpose of filing disciplinary charges contained in the individual's personnel file in determining a disciplinary penalty. The reason for this is that the appointing authority's ability to use an individual's personnel record in deter­mining a penalty is not triggered until after the employee is found guilty of one or more charges of incompetency or misconduct of charges that have been timely served and then only after the individual is advised of that fact and given an opportunity to respond.

Full post as published by New York Public Personnel Law on June 05, 2008 (boomark / email).