Challenging administrative decisions
Gomez v Safir, 271 AD2d 246
The Gomez case points out a procedural trap that an individual may encounter in the event he or she delays challenging an administrative decision. In this instance the case involved a delay by a police officer in contesting an administrative decision denying his request to engage in off-duty employment.*
There two basis issues involved in this case:
1. Did a pending grievance concerning the denial of his administrative application for off-duty employment approval toll the statute of limitations for filing an Article 78 petition challenging the administrative disapproval action? and
2. Was the determination of the commissioner in denying Gomez’s request reasonable?
New York City police officer Felipe Gomez wanted to be a professional boxer. When his administrative request to work off-duty in pursuit of a boxing career was disapproved, he appealed the administrative determination to the commissioner. He also filed a contract grievance protesting the denial of his request for permission to engage in off-duty employment as a professional boxer.
First, the commissioner denied Gomez’s administrative appeal concerning permission to participate in boxing while off-duty. Gomez did not immediately challenge the commissioner’s administrative decision but decided to wait for commissioner’s decision concerning his grievance.
The commissioner also denied Gomez’s grievance, ruling that Gomez’s complaint did not involve a contractual right subject to the grievance process; Gomez then initiated an Article 78 action seeking a court order vacating the commissioner’s administrative decision.
However, by the time the commissioner issued the grievance ruling more than four months had passed by since the commissioner had issued his administrative ruling on Gomez’s administrative appeal. As a result the first issue to be resolved by the court was a procedural one -- was Gomez’s Article 78 petition appealing the commissioner’s administrative ruling timely; i.e., was it filed within four months of the final administrative determination?
State Supreme Court Judge William McCooe said it was untimely and dismissed Gomez’s petition. Why? Because, said the court, the commissioner’s administrative decision became final and binding on Gomez when he was told that the commissioner had denied his administrative appeal. Accordingly, the four-month statute of limitations for bringing an Article 78 action commenced to run at that time.
The critical element in resolving the timeliness issue: Judge McCooe said that Gomez’s attempt to resort to contractual grievance procedures did not toll the four-month limitations period, citing Lubin v Board of Education, 60 NY2d 974.
The lesson here: delays in filing an Article 78 petition because the employee is awaiting the resolution of a grievance or arbitration concerning the same issue is fatal as the Gomez decision demonstrates.
Similarly, in Roper v NYC Department of Citywide Administration, Appellate Division, Third Department, 271 AD2d 737, the court sustained the Unemployment Insurance Appeal Board’s dismissed Clyde Roper’s appeal of the denial of his unemployment insurance claim as untimely. Clyde testified that he received the ALJ’s decision but did not appeal based upon his attorney’s advice to wait for a pending arbitration decision. The court sustained the board’s conclusion that Clyde failed to comply with the 20-day filing requirement of Section 621(1) of the Labor Law and dismissed his appeal.
Although the Appellate Division dismissed Gomez’s complaint for technical reasons, it also elected to comment on the merits of his claim. The court pointed out that although Section 208-d of the General Municipal Law allows a police officer to accept off-duty employment, such employment must not affect his physical condition to the extent that it impairs his ability to efficiently perform [his or her regular] duties.
The court’s conclusion as to merits of Gomez’s appeal: given this qualification, it cannot be said that the blanket prohibition against professional boxing apparently applied here is so lacking in reason as to be arbitrary.
* A number of law enforcement agencies have adopted a policy setting the nature of off-duty employment that its officers may accept and generally require the officers to obtain prior approval before accepting off-duty employment. In some instances, the department’s off-duty work policy has been incorporated in an agreement negotiated pursuant to the Taylor Law. An employer’s restriction on employee’s use of their nonworking time is generally a mandatory subject of negotiations and the union’s acquiescence to limitations concerning off-duty work does not constitute a waiver of the right to bargain subsequent prohibition [see Sheriff’s Association and Ulster Co. Sheriff, 27 PERB 3028].
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