Wade Clark Mulcahy LLP

New York Civil Service Law section 75 governs discipline for certain classes of public employees. Section 75 provides, in relevant part, that a covered person shall not be removed or subject to any disciplinary penalty except for incompetency or misconduct. The section does not specifically define the term incompetence, but arbitration decisions and case law have established the burden of proof necessary to establish incompetence.

For example, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/03/Matter-of-Kimble-v.-Yonkers-Bd.-of-Educ.pdf">Matter of Kimble v. Yonkers Bd. of Educ</a>.,</em> the Appellate Division, Second Department addressed this issue in reviewing the decision of a school board to terminate a custodian after a Section 75 hearing had determined that he was guilty of incompetence, insubordination and misconduct. The Court’s review was limited to whether the administrative determination was supported by “substantial evidence,” defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.”

Recognizing that a finding of incompetence only requires evidence of “some dereliction or neglect of duty”, the Court determined that there was substantial evidence in the record to support the determination that the custodian was guilty of incompetence, insubordination, and misconduct as he discovered a knife and pepper spray under a radiator and left them there for approximately three hours knowing that there were students and other staff in the building, and gave students money after betting that one of the students would win in a basketball gamer.

However, after considering the janitor’s length of service and lack of a prior disciplinary record, the Court found that the ultimate penalty of termination was “so disproportionate to the offense as to be shocking to one’s sense of fairness.”

<em>Kimble</em> is significant in that the Second Department agreed with school board and hearing officer that the public employee was guilty of incompetence and misconduct but refused to sanction the employee’s firing based on the employee’s record and length of service.

Thank you to Rebecca Pasternak for her contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.