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Chapter I - Subchapter D

§1-47 Evidence Pertaining to Penalty or Relief.

Penalty Evidence


At the start of the trial, the parties stipulated to the admission into evidence of a stipulation of settlement between respondent and DOB and other documents regarding matters that were not charged in the proceeding. Out of an abundance of caution, ALJ determined that the offered documents should not be made part of the record at that time as it appeared to be in the nature of a personnel disciplinary record or other analogous file. ALJ advised that should she find it necessary to do so, she would request submission of the documents for consideration in making a penalty recommendation. Dep’t of Buildings v. Trombettas, OATH Index No. 2325/15 (Jan. 29, 2016), adopted, Comm’r Dec. (Feb. 11, 2016).

Administrative law judge denies motion seeking modification of procedures used by OATH to request and consider personnel materials. Administrative law judge found that section 1-47(b) of OATH's Rules of Practice provides notice of the procedures to be followed when requesting and considering personnel materials and that these procedures satisfy the fundamental fairness standard set forth in Bigelow v. Bd. of Trustees, 63 N.Y.2d 470, 474, 483 N.Y.S.2d 173, 174 (1984). Dep't of Sanitation v. Joyce, OATH Index 888-89/00, mem. dec. (May 8, 2000).

A post-trial motion to obtain copies of material from respondent's personnel file submitted to ALJ for review in making a penalty recommendation and requesting a hearing with respect to the documentation contained in the file prior to the issuance of a report and recommendation was denied. Subsection (b) of this section provides notice of the procedures to be followed when requesting and considering personnel material and that these procedures satisfy the fairness standard articulated in Bigelow v. Board of Trustees, 63 N.Y.2d 470, 474, (1984). As the administrative law judge may consider only those records that respondent may inspect as of right, respondent therefore may review his personnel records at any time prior to submission to the judge and may, if necessary, correct any errors or omissions in the records. Finally, respondents have a right to comment to the final decision maker prior to the issuing of a final decision in the matter. Triborough Bridge and Tunnel Auth. v. Mondiello, OATH Index No. 1563/01, mem. dec. (June 28, 2001).

On a motion to expunge charges preferred against respondent in 2004 from consideration by the ALJ on the penalty phase, the Collective Bargaining Agreement did not clearly support respondent’s interpretation.  The plain face of the expungment clause in the CBA stated that it applied only to discipline preferred on or after March 1, 2006.  Parol evidence as to the meaning of the expungment clause, was inadmissible, and, in any event, inconclusive. Triborough Bridge & Tunnel Auth. v. Collins, OATH Index. No 1652/10, mem. dec. (May 13, 2010).

Proof that respondent received memoranda which appear in his personnel file were satisfied by notarized statement by his supervisor and therefore could be considered in determination of an appropriate penalty. Memoranda showed that respondent had engaged in similar acts of disrespect towards his supervisors in 1993 and 1994. When considered together with the misconduct found to have occurred in 1999 and 2000, the penalty of termination of employment was recommended. Bd. of Education v. Fuccio, OATH Index No. 924/01 (June 21, 2001).

Unadjudicated allegations and police report in respondent's personnel file could not be considered for purposes of penalty. Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Pawlowski, OATH Index No. 1836/00 (Oct. 4, 2000).

Pursuant to this section, evidence relevant to penalty may be adduced at trial, or after trial by submission, in an employee disciplinary case, of the employee's personnel file. Human Resources Admin. v. Brown, OATH Index No. 1557/95 (Dec. 1, 1995).

The petitioner is entitled to adduce any relevant evidence, from any competent source, in an effort to prove any fact that might aggravate the penalty to be imposed on the respondent. Human Resources Admin. v. Brown, OATH Index No. 1557/95 (Dec. 1, 1995).


Generally speaking, the petitioner bears the burden of proof of aggravating factors, and the respondent bears the burden of proof of mitigating factors. Human Resources Admin. v. Brown, OATH Index No. 1557/95 (Dec. 1, 1995), aff'd, NYC Civ. Serv. Comm'n Item No CD 96-116 (Sept. 25, 1996).


In a disciplinary proceeding, respondent's counsel requested leave to present evidence as to penalties in similar cases that were settled. Under this rule, penalty evidence is not considered prior to a finding that the employee has engaged in misconduct. The administrative law judge denied the motion because stipulations of settlement lack precedential effect. Triborough Bridge and Tunnel Auth. v. Colon, OATH Index No. 1501/03, mem. dec. (July 31, 2003).