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Wednesday, April 23, 2014

Loss of a required license or permit to perform the duties of the position


Loss of a required license or permit to perform the duties of the position
2014 NY Slip Op 50585(U),  Supreme Court, Dutchess County, Judge James D. Pagones (Not selected for publication in the Official Reports.)

In this Article 78 action a former employee of a State agency [Petitioner] challenged his summary dismissal from his position on the grounds that he did not possess a valid driver’s license to operate a motor vehicle in New York State. Petitioner asked Supreme Court to (1) annulling the Employer’s terminating him from his position, (2) directing his reinstatement to his position with back pay, benefits, service time, seniority and other fringe benefits; and (3) award him the costs and disbursements of this proceeding, together with reasonable attorney's fees.

Petitioner’s employer had notified Petitioner that his employment would be terminated because he did not meet the "minimum qualifications" of his position as he had not secured and/or maintained a valid New York State driver's license.” Alleging that the Employer’s determination was arbitrary, capricious and made in bad faith, Petitioner argued that:

(1) he should have been afforded the protections mandated by Civil Service Law Section 75, and as outlined in Article 33 of the Collective Agreements between the State of New York and the New York State Civil Service Employees Association;

(2) while minimum qualifications of employment may not rise to acts of misconduct that would invoke disciplinary procedures mandated by the Civil Service Law, a driver's license was not a minimum qualification at the time of his appointment; and

(3) the class specification for his position does not clearly identify a valid driver's license as a minimum qualification.

Judge Pagones said that it is well settled that the failure to maintain a minimum qualification for employment is not an act of misconduct nor one related to job performance that would invoke the disciplinary procedures mandated by Civil Service Law §75, citing Matter of NYS Office of Children and Family Services v Lanterman, 14 NY3d 275. 

Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.*

Thus, explained the court, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it" and dismissed Petitioner’s action.

* See, for example: Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private employer terminated him after his driver’s license was suspended)

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_50585.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/

A Reasonable Penalty Under The Circumstances 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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