Tuesday, November 01, 2011

Availability of a record essential in reviewing administrative determinations

Gumb v Port Authority of New York and New Jersey, NYS Supreme Court, Ia Part 6, Justice Bransten [Not selected for publication in the Official Reports.]

Citing Pell v Board of Education, 34 NY 2d 222, Justice Bransten said that it is well-settled that the standard for judicial review of an administrative determination in an appeal brought pursuant to CPLR Article 78 is limited to a court's determining whether or not the agency acted arbitrarily or capriciously in making its decision.

Assume, however, the agency whose decision is under review, through no fault of its own, cannot produce the records it claims would demonstrate that its decision was neither arbitrary nor capricious. This was the situation underlying the Gumb case.

Kevin J. Gumb filed an application for appointment as a police officer with the New York-New Jersey Port Authority Police. After he took and passed the Authority's written test for the position, the Authority notified him that it had disqualified him for appointment as a police officer based on the evaluation of his psychological tests and interviews "which found ... personality traits incompatible with the unique demands and stresses of employment as a Port Authority Police Officer."

Gumb sued, claiming that the Port Authority's determination was arbitrary and capricious and amounted to an abuse of discretion.

The only available record concerning Gumb's testing: a letter sent to Gumb stating that:

Based upon the multiple written psychological screening tests administered and two individual interviews, it was determined by the Port Authority Office of Medical Services that [you] would be unsuited [sic] for the position of Police Officer for Port Authority Public Safety Division.

The medical records concerning Gumb's examination and evaluation were destroyed in the September 11 terrorist attacks on the World Trade Center. Under the circumstances, the Authority argued, the letters sent to Gumb should be sufficient evidence of the basis for its administrative determination disqualifying Gumb to justify the court's dismissal of his petition. In the words of the Authority, the loss of the actual record "is insignificant to the instant petition, because the record is clear that [Gumb] was interviewed twice and was found unsuitabl[e] for the position."

The court disagreed, noting that courts are obligated to undertake a limited review to ensure "administrative rationality" and must find that there is some "rational basis or credible evidence to support an administrative determination" in order to sustain the administrative action being challenged.

Although there was written correspondence to Gumb notifying him that he was not going to be certified based upon results of psychological examination, the court said that it had nothing to rely upon to determine the rationale behind the Authority's decision to disqualify him. Accordingly, Justice Bransten said that it would not "blindly defer to the governmental decision" and ordered the Authority to re-evaluate Gumb.

Significantly, the court did not conclude that the Port Authority was arbitrary and capricious in making its determination. Rather, Justice Bransten said that the court's difficulty concerned the fact that, through no fault on the part of the Authority, there simply was no administrative record to review.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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