Monday, February 10, 2014

An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75


An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75
2014 NY Slip Op 00659, Appellate Division, Second Department

A former employee [Petitioner] of the New York City Transit Authority [NYCTA] filed an Article 78 action challenging [1] NYCTA terminating him without a formal hearing pursuant to Civil Service Law §75 and [2] rejecting of his request for a lump sum payment for unused leave “based on his election to retire in response to an investigation into certain timekeeping violations which he subsequently was found to have committed.”

Supreme Court, Kings County dismissed the Article 78 proceeding and the Appellate Division affirmed the lower court’s ruling.

Addressing Petitioner’s claim that he was denied due process as a result of NYCTA’s failing to provide him with a pre-termination disciplinary hearing, the Appellate Division explained that NYCTA had demonstrated that Petitioner was an employee to whom the provisions of Civil Service Law §75 did not apply as he was employed in a non-competitive class position that had been designated as confidential or policy-influencing.

§75 applies to certain persons holding permanent appointment in the Classified Service and, in pertinent part, provides that a person holding a position by permanent appointment in the non-competitive class of the classified civil service in “other than a position designated in the rules of the state or municipal civil service commission as confidential or requiring the performance of functions influencing policy….” *

Turning to Petitioner’s claim that NYSTA could not deny his request for a lump sum payment without first affording him a formal disciplinary hearing pursuant to Civil Service Law §75,**the Appellate Division ruled that the Authority’s action “was not improper.”

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division dismissed this branch of Petitioner’s appeal noting that NYCTA's determination denying Petitioner's request for a lump sum payment for his unused vacation credits was in accordance with its established policy and was neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness.

* See §75.l[c]

** See 4 NYCRR 23.1, which applies to employees of the State as the employer and provides for payment of leave accruals upon separation. 4 NYCRR 23.1, in pertinent part, provides that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.” Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:


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