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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

January 26, 2011

Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained

Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained
Matter of Rodriguez v County of Nassau, 2011 NY Slip Op 00384, Appellate Division, Second Department

The Nassau County Civil Service Commission wrote to Sebastian E. Rodriguez a candidate for appointment as a Nassau County Correction Officer, advising him that he had been "disqualified for . . . failure to cooperate with [his] background investigation." The Commission also told Rodriguez that he had the right to "make explanation and to submit facts in opposition to such disqualification."*

The Commission’s action followed Rodriguez’s failing to contact the Nassau County Police Department after he was told that the Department was investigating his character and background to determine his eligibility for the position of Correction Officer.

Rodriguez was told to call the Department to receive further information and schedule an appointment. The letter also stated “If you fail to contact [the Correction Department’s official] by May 5, 2008, your application may be discontinued." In addition, a Department official left four voice messages on Rodriguez’s cell telephone’s voicemail in an attempt to contact him.

Rodriguez responded to the Commission’s letter claiming that [1] he never received the Department’s letter and [2] that because he did not regularly use his cellular telephone, he was unaware of the voice messages until the week of June 2, 2008. The Commission, after reviewing the matter, advised Rodriguez that it had decided to uphold the original disqualification notification.

Rodriguez filed a petition pursuant to CPLR Article 78 arguing that the Commission’s decision to disqualify him as a candidate for appointment as a correction officer was "arbitrary and capricious and without just cause or good sound reason."

The Supreme Court granted Rodriguez’s petition, explaining that there was no "rational reason" why the Nassau County Police Department did not attempt to contact Rodriguez either through his previously provided home or work telephone numbers, and that the County officials had failed to explain how the his delay "adversely affected the application process."

The Appellate Division reversed the Supreme Court’s decision, explaining that "[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious.”

Further, said the Appellate Division, “the Commission's determination to disqualify [Rodriguez] based upon [his] failure to timely schedule the background interview was neither irrational nor arbitrary.”

* §50.4 of the Civil Service Law sets out the reasons for which the state civil service department or a municipal commission may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position being sought, and the due process procedures available to the disappointed applicant wishing to object to the department's or a municipal commission's determination.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00384.htm

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