January 15, 2014

An appointing authority must comply with the procedures set out in Civil Service Law §72

An appointing authority must comply with the procedures set out in Civil Service Law §72
2014 NY Slip Op 24005, Supreme Court, New York County, Judge Michael D. Stallman

In this “combined Article 78 and Article 75 proceeding,” State Supreme Court Judge Michael D. Stallman considered two issues: [1] action taken under Civil Service Law §72.5 for placement of tenured civil service worker, Employee, on involuntary leave for medical disability and [2] a parallel grievance procedure under a collective bargaining agreement (CBA) between the State of New York and the Public Employees Federation, Employee's union, challenging efforts to terminate Employee from his position.

Employee was placed on involuntary leave with pay under color of Civil Service Law §72.5 by his employer [Agency] and while on such leave, was served with disciplinary charges in accordance with the disciplinary procedure set out in the CBA seeking Employee’s dismissal. Employee placed on leave without pay in connection with the disciplinary action.

Addressing the disciplinary charges served on Employee, Judge Stallman said that the matter was submitted to arbitration in accordance with the CBA’s disciplinary grievance procedure. The arbitrator sustained Employee's grievance in part and directed that he be reinstated to his position. After receiving the arbitration award Employee was notified that “he was still on leave pursuant to Civil Service Law §72.5 and that he would not be reinstated until he did certain things.”

Employee than petitioned the court to [1] confirm the arbitration award, the Article 75 proceeding; and [2] annul the determination placing him on involuntary leave pursuant to CSL §72.5, the Article 78 proceeding. As his remedy, Employee asked the court to”

(1)   Direct his reinstatement to his former position and pay him back pay and benefits; and
(2)   Declare that his continuation of leave is arbitrary and capricious and in violation of Civil Service Law §72.

Addressing the disciplinary action taken against Employee, Judge Stallman said that the Arbitrator, Gayle A. Gavin, issued her Opinion and Award, stating, "[t]he grievant is denied in part and sustained in part. The charges are proved. The penalty is modified to a time-served suspension,” and directed that Agency reinstate Employee to his position “forthwith."

Rejecting Agency’s arguments that the award should be vacated because the arbitrator's determination was irrational since the arbitrator found that all four charges had been proven, “two of which also purportedly constituted crimes under state law," and because of Employee's prior disciplinary history, “the only rational penalty is petitioner's dismissal.”

The court confirmed the arbitrator’s award* noting that the arbitrator's determination to reduce Employee's penalty to a time-served suspension “was not totally irrational,” explaining that the arbitrator analyzed and evaluated all of the relevant evidence. In setting the penalty to be imposed, the arbitrator considered the fact that in his 24 years of service Employee had received only two written counseling memoranda prior to the filing of the disciplinary charges underlying this appeal, concluding that terminating Employee's would be an excessive penalty given a "good disciplinary record for a long-term employee." However, said Judge Stallman, the arbitrator also noted that, "while dismissal in this instance is viewed as excessive, any future similar misconduct will not be treated as leniently."

Turning to Employee’s §72 appeal, the court said that Agency sent Employee a letter with the heading "Section 72 Employee Notification" notifying him, among other things, that he was to be examined by two health professionals. The letter stated, in part, that "This letter is to advise you that [Agency] has requested that you be examined by Employee Health Services to determine your fitness to perform the full duties of your position ….”

The New York State Employee Health Services subsequently advised Agency that that a physician and a psychologist had examined Employee and that based on those evaluations, [Employee] "is fit to perform the essential duties of [of his position]..However, at this time, [the psychologist] is unable to make a determination whether [Employee] represents a danger in the work place as he was evasive during psychological testing and as there was insufficient data regarding the intent of his extensive use of the internet while at work."

Agency then wrote to Employee stating that it had received Arbitrator Gavin's decision indicating that a modified penalty of a time-served suspension and reinstatement to the workplace as a result of disciplinary charges and that “this letter is to advise you that you are still on leave in accordance with Civil Service Law, Section 72.5 as a result of medical documentation provided by Employee Health Services (EHS) on … which indicated an inability to determine whether you present a danger to the workplace."

This letter also stated that “You will remain on such leave until you request a re-evaluation by EHS and [are] subsequently deemed competent to perform your duties in a manner that is safe for yourself, co-workers and the public.”

Judge Stallman Civil Service Law noted that §72(1) sets forth the mandatory procedure. The sequence of steps for proceeding under Civil Service Law § 72 (1), relevant to this case, are:

1. The employer must provide written notice of the facts providing the basis for the proposed leave and judgment that the employee is not fit to perform the duties of his position, the date on which the leave is to commence, and the employee's rights under the procedure served by first class, registered, or certified mail return receipt requested, upon the employee;

2. A medical examination conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction to determine whether employee is fit to perform the duties of his position;

3. The employee has ten working days from the service of the notice to object to the imposition of the proposed leave of absence and request a hearing filed by the employee personally or by first class or registered mail, return receipt requested; and

4. The employee shall be entitled to draw all accumulated, unused sick leave, vacation, over time and other time allowances standing to his credit while on leave.

Noting that "Because of the significant due process implications of [§72], strict compliance with its procedures is required" Judge Stallman said Agency did not comply with the statutory scheme of §72 but rather “placed [Employee] on an involuntary leave of absence with pay instead of a leave of absence without pay, as required under Civil Service Law §72(5)."**

The following omission or errors were noted by Judge Stallman:

1. Agency’s notice that placed Employee on leave does not state the reasons why he was being placed on involuntary leave nor cites Civil Service Law §72(5) as its statutory authority for so doing;

2. The notice fails state "the facts providing the basis for placing Employee on §72(5) leave,” i.e., it neither recites its basis for itse judgment that Employee "is not fit to perform the duties of his position" nor does it contains any reference to Employee’s "dangerousness" or "fitness to perform duties;" and

3. The Agency’s communication did not provide proper notice as required by statute as the letter neither state any reasons nor refer to any determination that Employer's presence on the job would either represent a potential danger to persons or property, or would severely interfere with Agency operations. The court said that “Even if providing a copy of the statute may have satisfied [Agency’s] obligation to inform [Employer] of his statutory rights, Agency still failed to meet the other statutory requirements” and simply providing a copy of the statute did not satisfy the notice requirements of the statute.

Holding that "Due to [Agency’s] failure to comply with the notice requirements of the statute, [Employee's] purported placement on a leave of absence is a nullity." The fact that Agency may have had a rational basis in fact for taking the acts it took is not a defense to the issue of whether or not Agency followed the procedures provided by Civil Service Law §72.

Finding that Employee’s the current leave without pay violative of lawful procedure, Judge Stallman annulled the Agency’s actions and remanded the matter to it “for appropriate action pursuant to Civil Service Law §72.” ***

Judge Stallman then opined that “[Agency] has shown a rational basis for its belief that the [Employee] may be a danger in the work place. Thus, [Agency] need not permit [Employee] to return to the workplace, and Agency is free immediately to begin the Civil Service §72 process anew.”

Judge Stallman also observed  “It may seem anomalous that someone in [Employee’s] position, who has not fully cooperated with the psychological evaluation, can be restored to the payroll even though he is not performing his job duties. The anomaly results from [Agency’s] choice — permitted by [CBA] and statute — to have brought the arbitration in parallel with the purported section 72 involuntary leave proceeding. Each is governed by a different legal framework; each has different standards and procedures. Nevertheless, [Agency has its] remedy: [it] can follow the mandated statutory procedures required by Civil Service Law §72.

* Judge Stallman said "Because of the great degree of deference afforded to arbitration awards, the available grounds for vacating them are extremely limited. Mere errors of law or fact reflected in an arbitration award are insufficient for a court to overturn it, since the courts should not assume the role of overseers to mold the award to conform to their sense of justice.' A court may only disturb the award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power.'"

** The court said “Whether the leave with pay was a mistake or an exercise of compassion or both, need not be determined here.”

*** Employee is entitled to back pay to the extent that he was not paid during any period of absence allegedly pursuant to §72.

The decision is posted on the Internet at:


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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