Wednesday, December 10, 2014

Placing an employee on an involuntary leave of absence pursuant to Civil Service Law §72.5

Placing an employee on an involuntary leave of absence pursuant to Civil Service Law §72.5
2014 NY Slip Op 08273, Appellate Division, Third Department

This appeal considers the placement of an employee [Anonymous] (1) on an involuntary leave of absence pursuant to Civil Service Law §72.5 and [2] a subsequent determination by Anonymous’ appointing authority to terminate Anonymous’ employment pursuant to Civil Service Law §73.

Anonymous was employed as a police officer and was placed on involuntary leave by the appointing authority pursuant to Civil Service Law §72.5 after the appointing authority determined that there was probable cause to believe that the continued presence of Anonymous on the job represented a potential danger to persons or property or would severely interfere with agency operations.

Anonymous was then examined by a physician who found that Anonymous was “mentally unfit to perform the duties of his position at that time.”

Pursuant to a request by Anonymous' employee organization a hearing was conducted and the Hearing Officer issued a written decision on April 19, 2012 finding that Anonymous was properly subjected to an involuntary leave of absence approximately one year earlier due to being mentally unfit at that time and recommended that Anonymous be discharged from his position.* Anonymous appealed the determination and in November 2012 the New York State Civil Service Commission denied Anonymous' appeal of the appointing authorities determination to place him on such involuntary leave.

In a letter dated April 20, 2012, the appointing authority notified Anonymous that his employment was terminated effective March 31, 2012 pursuant to Civil Service Law §73.

In May 2012, Anonymous challenged the appointing authority’s determination to terminate his employment, requested that the determination be revoked and asserted that due process of law required a more recent medical evaluation of his mental fitness to perform his work duties, as no medical assessment had been conducted in more than a year. The appointing authority denied Anonymous' demand for a post-termination §73 hearing.

Anonymous commenced this proceeding to annul the Commission's determination regarding his placement on involuntary leave and to annul the appointing authority's determination to terminate his employment. He also sought a court order directing his reinstatement to his former position with back pay and benefits.

The Appellate Division rejected Anonymous' contention that he was denied pre-termination due process protections, explaining that “Minimum pre-termination due process requirements are satisfied where, as here, an employee is given notice of the grounds for possible discharge and some opportunity to respond." The record makes it clear that Anonymous was well aware of the appointing authority’s concerns with his mental ability to serve as a police officer and that he contested, at every turn, the allegations that his psychological condition was deficient prior to his discharge from employment.

The court, however, agreed with Anonymous' assertion that the failure to conduct a post-termination hearing was violative of his right to due process, noting that employees who are terminated from their positions pursuant to Civil Service Law §73 "are entitled to a full post-termination hearing."

The court, however, agreed with Anonymous' assertion that the failure to conduct a post-termination hearing was violative of his right to due process, Although the appointing authority speculated that “it is unlikely that Anonymous could produce medical evidence establishing his fitness to occupy his position as of the date of his termination from employment.” the Appellate Division said that were it to accept such reasoning, "it would allow an agency that is intent on terminating an employee to arbitrarily decide whether a post-termination hearing was necessary, a determination which flies in the face of existing law.”

In the words of the Appellate Division, “The rationale for providing [Anonymous] with a post-termination hearing is to afford him a final opportunity to present proof demonstrating how his mental condition changed, if at all, and whether he is able to perform his job duties as of the date of his termination. To deny Anonymous' request for a post-termination hearing was constitutionally infirm and, therefore, remittal of this matter is necessary for the completion of such administrative proceedings,” citing House v New York State Off. of Mental Health, 262 AD2d 929.

* Although the phrase used in the decision is "be discharged from his position," such termination is not a pejorative dismissal as §73, in pertinent part, specifically provides that an individual terminated from a §72 leave “may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.” §73 further provides that “If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his former position, he shall be reinstated to his former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field in his former department or agency. If no appropriate vacancy shall exist to which such reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed on a preferred list for his former position in his former department or agency, and he shall be eligible for reinstatement in his former department or agency from such preferred list for a period of four years.”

The decision is posted on the Internet at:

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Challenging Adverse Personnel Decisions at

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