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Wednesday, March 24, 2010

Administrative decision disqualifying applicant for promotion examination because she retained examination material overturned

Administrative decision disqualifying applicant for promotion examination because she retained examination material overturned
Matter of City of New York v New York City Civil Service Commission and Esther Silver, 2006 NY Slip Op 30014(U), [Not selected for publication in the Official Reports]

Esther Silver, a Sabbath observer, took a civil service examination for promotion to Associate Staff Analyst on Friday, June 8, 2001 instead of on its scheduled date, Saturday, June 9, 2001.

The Department of Citywide Administrative Services [DCAS], the examination administrator, called Silver at home concerned about a missing copy of the examination booklet. Silver later discovered that “the booklet was nestled in between other papers in her purse.”

Silver reported this to DCAS and DCAS immediately sent its representative to Silver’s home to retrieve it. Carol Wachter, DCAS’s Assistant Commissioner for Examinations, subsequently notified Silver that she was disqualified because she had retained possession of her test booklet.

Joseph A. DeMarco, Deputy Commissioner of the Division of Citywide Personnel Services of DCAS, upheld Silver’s disqualification, whereupon Silver appealed to the New York City Civil Service Commission [CSC]. CSC conducted a hearing and ultimately issued a decision reversing DCAS’ s determination.

Claiming that CSC’s reversal of its decision was affected by an error of law because Silver’s continued possession of the test booklet after the conclusion of the examination mandates disqualification, DCAS appealed. It contended that CSC’s reversal of its determination was arbitrary and capricious and an abuse of discretion.

Judge Doris Ling-Cohan sustained CSC’s determination, holding that “there was a rational basis for CSC’s determination and the action complained of was neither arbitrary, nor capricious.”

Judge Ling-Cohan commented that “the Civil Service Law empowers New York City to administer the provisions of the. Civil Service Law through whatever form of administration it chooses to prescribe in its city charter (Civil Service Law 6.15).”

Although New York City Charter established DCAS as an administrative agency responsible for citywide personnel matters, CSC has the power to prescribe, amend, and enforce suitable rules for examinations, appointments, promotions, transfers, resignations, and reinstatements under the Civil Service Law, as well as the authority to review decisions by DCAS.

DCAS contended that its ruling was correct as a matter of law, citing Section 50(11)(d), a provision entitled “Unlawful acts in respect to examinations administered pursuant to this chapter.”*

Judge Ling-Cohan pointed out that in interpreting a similar statute, the Court of Appeals has held that the Commissioner of Education’s review powers over the decision of a hearing panel were broad and with regard to any punishment to be imposed, the Commissioner could substitute his own judgment for that of the panel, citing Mutter of Shurgin v Ambach, 56 NY2d 700 and Matter of Letyn v Ambach, 56 NY2d 912. In addition, said Judge Ling-Cohan, courts have held that an appeal board has the power to reverse a decision rendered below even if that decision was not arbitrary and was supported by substantial evidence.

In this instance, CSC conducted a hearing and investigation. Silver testified that after completing her examination, the proctor examined and collected all of her test materials and that “she was unaware her examination booklet was in her possession until her daughter called and informed her that DCAS had phoned and inquired about the missing booklet.” Further, Silver had supplied DCAS with a signed affidavit stating that she had neither shown the booklet to anyone

CSC found this testimony credible and Judge Ling-Cohan said the record established that CSC’s decision was neither arbitrary nor capricious. As the court noted, there was no evidence in the record that controverts Silver’s statements. Accordingly, said the court, “While one might reasonably disagree with the [CSC’s] action, [CSC] is the commission that is invested with the discretion to balance the competing interests involved in these matters, and, as previously indicated, the scope of [this court’s] review is limited,” citing City of New York v O’Connor, 9 AD3d 328, [Leave to appeal denied, 3 NY3d 611].

* Section 50(11)(d) provides a person who shall: “Have in his or her possession any questions or answers relating to any such examination, or copies of such questions or answers, unless such possession is duly authorized by the appropriate authorities…, shall be guilty of a class A misdemeanor punishable by a sentence of imprisonment of six months or a fine of one thousand dollars, or both. Additionally, a person who is found by the state civil service department or municipal commission to have violated this section shall be disqualified from appointment to the position for which the examination is being held and may be disqualified from being a candidate for any civil service examination for a period of five years.”

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on:

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on


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