Tuesday, July 09, 2013

Employee terminated for failure to comply with the employer’s “residence” requirement

Employee terminated for failure to comply with the employer’s “residence” requirement
2013 NY Slip Op 04148, Appellate Division, Fourth Department

The City of Niagara Falls requires its employees “to reside in the City.” When the City terminated the employment of one of its employees based on her failure to comply with the City’s residence requirement, the individual filed a petition pursuant to CPLR Article 78 challenging the City’s action.

Supreme Court granted the individual’s petition; the Appellate Division reversed the lower court’s ruling on the law.

Addressing the merits of the City’s determination, the Appellate Division said that “"the proper standard for judicial review in these cases is whether the . . . determination was arbitrary and capricious or an abuse of discretion.” Here, said the court, it conclude that City’s determination that individual violated the City's residency requirement was neither arbitrary nor capricious nor an abuse of discretion.

The Local Law relied upon by the City, Local Law No. 7, as amended, defines "residency" as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."

The Appellate Division said that it agreed with the City that the phrase "actual principal place of residence is akin to, if not synonymous with, the legal concept of domicile,' i.e., living in [a] locality with intent to make it a fixed and permanent home."**

In this regard the court found that the City had sufficiently established that individual’s "actual principal place of residence" was in the Town of Niagara rather than the City of Niagara by utillizing the services of a surveillance company.

Under these circumstances, the Appellate Division concluded that the City’s determination was neither arbitrary nor capricious because there is substantial evidence, based on the surveillance of the individual demonstrating that she "normally [slept]" at the Town of Niagara address. While the individual did produce documents listing a City residence as her address, the court decided "that evidence was not so overwhelming as to support the [Supreme] court's determination granting the petition."

Relying on the "extremely deferential" standard applied in reviewing administrative determinations, the Appellate Division decided that the City's determination that individual's actual principal place of residence was outside the City is not "without foundation in fact" and the City "rationally concluded that [individual] did not comply with the residency policy."

** See also Alexis v City of Niagara Fallsposted on the Internet at:  http://publicpersonnellaw.blogspot.com/2013/05/an-employees-satisfying-employers.html

The decision in this action is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_04148.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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