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Thursday, April 12, 2012

Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed


Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed

OATH Administrative Law Judge Faye Lewis, citing Umlauf v. Safir, 286 A.D.2d 267, noted that it was error for the employer to attempt to terminate an employee for alleged pre-hiring misconduct as the authority with respect to such alleged pre-hiring conduct is “statutorily vested in the head of the New York City Department of … Citywide Administrative Services” pursuant to Civil Service Law §50(4).

§50(4) permits the “appropriate municipal commission” to “investigate the qualifications of an eligible after he [or she] has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... may revoke such eligible’s certification and appointment and direct that his [or her] employment be terminated.”

Other issues considered by Judge Lewis in making her determination included the applicability of §160.50 of the Criminal Procedure Law to the admissibility of certain exhibits in the course of the administrative disciplinary action; the crimes exception to the statute of limitations set out in §75 of the Civil Service Law; and the admissibility of certain statements that the employee made to NYC Department of Investigation personnel that the employee’s attorney contended were obtained in violation of the employee’s constitutional rights.

Ultimately Judge Lewis found the employee guilty of other disciplinary charges and recommended the penalty of dismissal “despite [the individual’s] lack of prior disciplinary history.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-2571.pdf

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/

A Reasonable Penalty Under The Circumstances 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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