13.13 - (5) Penalties And Acquittals

• Jurisdiction: New York

(5) Penalties and Acquittals

The removing body or officer may accept the hearing officer’s factual findings and recommended penalty, if any; reject them both; or a combination of both.⁶²⁴⁵

Whenever the removing body or officer accepts the hearing officer’s factual findings but refers to the charged employee’s overall employment record to determine a penalty, and that record is not put before the hearing officer at the hearing, the employee is entitled to notice of the adverse material being considered and an opportunity to furnish a written response.⁶²⁴⁶

Where a hearing officer recommends findings and a penalty, the appointing authority may adopt the findings and reject the recommended penalty, if it so chooses.⁶²⁴⁷ If the employee is found guilty of the charges,⁶²⁴⁸ statutory penalties include a reprimand, a maximum fine of $100 to be deducted from salary, suspension without pay for a maximum of two months, demotion or dismissal.⁶²⁴⁹ Any time during which the employee was suspended may be considered as part of the penalty.⁶²⁵⁰

If acquitted of the charges, the employee must be restored to his or her position, with full back pay for the period of suspension, less unemployment insurance benefits received.⁶²⁵¹ One lower court has held that the amount owed to an employee is not reduced by any money earned in other employment during the suspension.⁶²⁵² In Della Vecchia v. Town of North Hempstead,⁶²⁵³ however, the court denied a reinstated employee’s request for accrued personal leave and vacation pay. Moreover, where any delay in the proceedings beyond the initial 30 days is deemed unreasonable and due to the conduct of the employee (and therefore results in an unpaid suspension beyond the 30 days authorized by statute), there may be a waiver of any right to back pay for the period of unreasonable delay.⁶²⁵⁴

Furthermore, a public employee is not entitled to full back pay where, when suspended while under criminal indictment, the employee continually postpones the disciplinary hearing pending the conclusion of the criminal proceedings against him or her. This may be so even if the employee ultimately is acquitted.⁶²⁵⁵ Ordinary delay, which is neither dilatory nor attributable to the charged employee, will not defeat the employee’s rights to back pay.⁶²⁵⁶

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Notes:

^[6245] . However, employers should be cautious in finding guilt and imposing a penalty where the hearing officer has recommended acquittal. See Zellmer v. Enlarged City Sch. Dist. of...