Reviewing body must have jurisdiction to consider disciplinary appeals

Reviewing body must have jurisdiction to consider disciplinary appeals
Montella v Bratton, Court of Appeals, 93 NY2d 424

Although Section 75 of the Civil Service Law sets out what is probably the best-known statutory procedure for initiating disciplinary action against employees in the classified service, other statutory procedures are available for this purpose.* The Montella decision by the Court of Appeals points out the fact that one must consider the basis for the underlying disciplinary action in order to determine the body having jurisdiction to consider appeals.

Peter Montella, a New York City police officer, was served disciplinary charges pursuant to Section 14-115 of New York City’s Administrative Code following his testing positive for drugs. Found guilty, Montella was dismissed from the force.

As a result of litigation challenging the disciplinary action, Montella obtained a second hearing, only to again be found guilty and dismissed. This time, however, Montella filed his appeal with the New York City Civil Service Commission rather than challenge the determination in court by filing an Article 78.

The Commission reversed Montella’s dismissal and ordered his reinstatement.

Although the department had participated in Montella’s appeal before the Commission, it subsequently refused to reinstate Montella and asked the Commission to “withdraw its determination because [the Commission] lacked subject matter jurisdiction to hear appeals from discipline imposed pursuant to the Administrative Code.”

The Commission rejected the department’s application, taking the position that “the Legislature intended Section 76 to provide alternative appeal routes for disciplined civil service employees, regardless of their position ... [and that] in the absence of explicit language precluding appeal by Police Officers” it had authority to review departmental discipline taken against officers pursuant to Section 14-115 of the City Code.

Montella sued to compel the department to comply with the Commission’s directive while the department filed a petition to have the Commission’s determination annulled on the ground that the Civil Service Commission lacked subject matter jurisdiction to entertain Montella’s appeal.

Did the Commission have jurisdiction to hear and decide appeals by uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York?

The Court of Appeals ruled that because the Civil Service Law explicitly limits the Commission’s jurisdiction to appeals from discipline imposed pursuant to Civil Service Law Section 75, and because punishment imposed by the New York City Police Commissioner pursuant to Section 14-115 is not the same as disciplinary action pursuant to Section 75, the New York City Civil Service Commission did not have jurisdiction to hear Montella’s appeal.

The decision points out that “the Civil Service Law further evidences the Legislature’s intention that New York City police officers be disciplined pursuant to the Administrative Code,” rather than pursuant to Section 75 when it amended Section 75 by adding subdivision 3-a which provides that if “such officer is found guilty of the charges, the police commissioner of such department may punish the police officer pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York.” This, the Court of Appeals concluded, acknowledges that New York City police officers are disciplined pursuant to a statutory scheme separate and distinct from Civil Service Law Section 75.

Civil Service Law Section 76(4) provides that nothing “contained in Section 75 or 76 “shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division.”

The court concluded that the Commission was not authorized to hear Montella’s appeal and its determination was void.

* In some instances an alternative to Section 75 disciplinary action has been negotiated in accordance with Section 76 of the Civil Service Law. In such cases the “contract disciplinary procedure” will typically set out the appeal procedure to be followed.
NYPPL