Wednesday, April 04, 2012

Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position

Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position
Lutz v Krokoff, 2012 NY Slip Op 22083, Supreme Court, Albany County, Justice Michael C. Lynch

An Albany, New York police officer’s driver’s license was revoked as the result of an off-duty incident.

The Chief of Police wrote the officer indicating that possession of a valid driver’s license “is a minimum qualification for [a] Police Officer in the City of Albany” and offered him “the opportunity to present ...written documentation regarding the status of [his] license.…” The officer told the Chief that his driver's license was "currently suspended pending prosecution and revoked ... but that he had filed a “Notice of Appeal.”

Chief Krokoff terminated the police officer from his position "effective immediately" explaining:

“In that you no longer hold a valid State driver's license allowing you to lawfully operate a motor vehicle in this State, you no longer meet a critically important minimum qualification of a Police Officer in the City of Albany.”

The officer sued, contending that the Chief’s determination to terminate his employment based on his failure to possess a valid driver's license was affected by an error of law and was arbitrary and capricious. The officer also argues that the determination was without a rational basis and arbitrary and capricious because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ...for the failure to possess a valid New York State driver's license".

Addressing the issue of “due process,” the court said that “A pre-termination hearing pursuant to Civil Service Law §75 or, in certain cases, a collective bargaining agreement, is not necessarily required where a public employee becomes ineligible or unqualified for continued employment,” citing New York State Office of Children and Family Services v. Lanterman, 14 NY3d 275 and Felix v. NY City Dep't of Citywide Admin. Servs., 3 NY3d 498.

Justice Lynch, referring to Felix, commented that in that case the Court of Appeals distinguished between conduct that renders an employee ineligible to continue employment (i.e.the failure to maintain a residence in the City as required by the City Code) with conduct constituting misconduct.

Only action in the nature of discipline is subject to pre-termination review pursuant to the Civil Service Law or a similar law, or a disciplinary procedure set out in a collective bargaining agreement. 

In contrast, where an individual is required by law to posses a valid license or “professional certification” in order to lawfully perform the duties of the position was the individual’s failure to produce evidence of his or her possession of the required license or certification meant that he or she was not qualified to hold the position rather than “incompetent,” in a pejorative sense, to perform the duties of the position.*

In this instance, said the court, the issue was whether Chief Krokoff's determination to summarily terminate the police officer based on his failure to posses a valid New York State driver's license was made in violation of lawful procedure, affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The question presented here did not implicate issues concerning the police officer’s performing the duties of his job satisfactorily or allegations of misconduct or competency. Rather, the police officer's ability “to operate a vehicle legally (i.e. with a valid license) is “a defined standard that is not related to job performance.” Justice Lynch concluded that once an officer loses his or her driver’s license, he or she is no longer able to perform the duties of his or her job lawfully. Whether that officer has engaged in misconduct or failed to competently perform such duties was not at issue.

In Justice Lynch’s view, the maintenance of a valid driver's license was a qualification for employment as a police officer in the City of Albany. As such, the Chief's decision to terminate the police officer without a hearing because he was unable to produce evidence of having a valid driver’s license was not arbitrary, capricious, contrary to law or a violation of due process.

As to the police officer’s claim of “disparate treatment” because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ... for the failure to possess a valid New York State driver's license," the court noted that Chief Krokoff had indicated that “since he became Chief of Police … no other police officer has been similarly situated to [the police officer] insofar as not having a valid driver's license" and the officer “has not demonstrated otherwise.”

Justice Lynch denied the police officer’s petition and dismissed his complaint.

* In Martin ex rel Lekkas, 86 AD2d 712, the appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. However, Lekkas served in an administrative capacity and did not practice medicine. The court held that only where the duties of the position required the incumbent to be licensed may the lack of such a license be grounds for termination.

The decision is posted on the Internet at:

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

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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