ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

April 25, 2011

Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal

Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal
Shih v Waterfront Commn. of N.Y., 2011 NY Slip Op 03190, Appellate Division, First Department

As Conrad Shih’s status as an auditor with the New York City Waterfront Commission was not within the Commission’s definition of a "permanent employee" Supreme Court ruled that Shih was not entitled to the due process protections of a “permanent employee” i.e. a pretermination hearing.

The Appellate Division agreed with the lower court determination that the Commission’s terminating Shih without such a hearing was neither arbitrary nor capricious.

Key to the Appellate Division’s decision was Howard v Wyman, 28 NY2d 434. In Howard the Court of Appeals said that “An agency has broad power to construe and interpret its own rules” and its interpretation must be upheld where, as here, it is rational.

As a nontenured employee, said the court, Shih was not entitled to a full adversarial hearing concerning the reasons for his termination. Further, the Appellate Division said that Shih “failed to show that his termination was for an improper reason or in bad faith,” citing Beneky v Waterfront Commn. of N.Y. Harbor, 42 NY2d 920, Certiorari denied 434 US 940.

Applying the “Pell Doctrine,”* the court ruled that “Given [Shih’s] attempt to steal a DVD from a music store and failure to report his arrest on related charges, we cannot say that the penalty imposed was so disproportionate to the offense as to shock one's sense of fairness.”

The decision is posted on the Internet at:

* Matter of Pell v Board of Education, 34 NY2d 222.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.