Tuesday, July 31, 2012

An officer or employee must possesses the appropriate license or permit only if he or she is performing duties that require such a license or permit


An officer or employee must possesses the appropriate license or permit only if he or she is performing duties that require such a license or permit
Ricket v Mahan, 2012 NY Slip Op 05773, Appellate Division, Third Department

One of the issues considered by the Appellate Division in this appeal was the allegation that the Town of Colonie appointed an individual to the office of Commissioner of Public Works who was unqualified for the position.

In this instance the court found that the individual appointed to the position of Commissioner of Public Works was selected based on his "administrative experience and qualifications for the duties of the office” and that  he was not required to possess a specific license or engineering degree to perform the duties of the position to which he had been appointed.

Noting that an investigation conducted by the State's Education Department determined that the Commissioner had not engaged in the practice of engineering while serving in the position, the Appellate Division concluded that the challenged appointee “has not engaged in nor was he required to practice engineering while holding this position."

This ruling reflects "the law of the case" set out in Matter of Martin as Administrator (Lekkas), 86 AD2d 712.

In Lekkas an Assistant Clinical Physician holding a permanent appointment with the Office of Mental Retardation and Developmental Disabilities was terminated from his position without notice or hearing because he did not obtain a license to practice medicine issued by the Education Department (Education Law §8522) set out in the minimum qualifications for appointment to the title Assistant Clinical Physician.

The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.

Affirming the lawfulness of summarily discharging an employee without notice and hearing if the worker is unable to produce his or her required license or permit necessary to perform the duties of the position when requested to do so, the Appellate Division ruled that summary termination was permitted only if the duties actually being performed required the possession of the license or permit.

Lekkas, however, was performing administrative duties rather than “practicing medicine.” 

Ruling that no license was mandated by law to perform administrative duties, notwithstanding Lekkas’ title of  “Assistant Clinical Physician,” the court concluded that his removal from his position was subject to the notice and hearing provisions of §75 of the Civil Service Law.

The Ricket decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05773.htm

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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