Sunday, June 07, 2015

Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute

Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute
2015 NY Slip Op 04712, Appellate Division, Third Department

The Civil Service Law §75 hearing officer found the employee [Employee] guilty of two of the three charges of alleged misconduct and recommended that the penalty of termination be imposed. The appointing authority adopted the findings and recommendation of the hearing officer and terminated Employee.

Employee then appealed the appointing authority’s determination to the New York State Civil Service Commission as authorized by Civil Service Law §76(1).* The Commission sustained the appointing authority’s decision and Employee then sought judicial review of the Commission’s decision alleging,  among other things, that “the disciplinary proceedings were untimely." Supreme Court transferred Employee's appeal to the Appellate Division.**

The Commission argued that its determination was not subject to judicial review, citing Civil Service Law §76(3). §76(3), said the Commission, provides that where, as here, an employee has elected to appeal an adverse disciplinary decision by the appointing authority to a State or local civil service commission, "[t]he decision of [the commission] shall be final and conclusive, and not subject to further review in any court."

The Appellate Division, conceding that “Such explicit statutory language” ordinarily bars further appellate review, said it could review the Commission’s ruling as such a “statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance,” citing Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 NY2d 542 and Baer v Nyquist, 34 NY2d 291. The court explained that “even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or ‘when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction.’"

In this instance Employee, presumably a state employee serving in a position designated managerial or confidential pursuant to Article 14 of the Civil Service Law, the Taylor Law, asserted that the Commission acted in excess of its statutory authority, and thus, its jurisdiction, by sustaining disciplining action taken against her by the appointing authority for conduct that occurred more than one year before the disciplinary proceeding was commenced against her. Such action, argued Employee, was, in violation of the limitations period legislatively established by Civil Service Law §75(4).

The Appellate Division, observing that “[T]he courts have the power and the duty to make certain that [an] administrative official has not acted in excess of the grant of authority given . . . by statute or in disregard of the standard prescribed by the legislature," said that it was persuaded that, in view of the circumstances presented here, "this Court must review the determination to the limited extent of determining whether Commission  acted in excess of its authority by disciplining petitioner for time-barred charges."

The court indicated that the relevant provision in the Civil Service Law barred disciplinary action based on alleged misconduct unless it was commenced within "one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges," provided, however, the charges of alleged misconduct are subject to an exception provided within the statute, which states that the limitation period does not apply "where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Commission contended that this statutory exception properly applies in Employee’s situation as she had been charged with conduct which constitutes the crime of official misconduct. Official misconduct is committed "when, with intent to obtain a benefit or deprive another person of a benefit . . . [a public servant] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized" (Penal Law §195.00 [1]).

The Appellate Division said that the relevant charges brought against Employee “fail to allege that [Employee] acted with the intent to gain a benefit or that she knew that her conduct was unauthorized; both of these mens rea [criminal intent] requirements are essential elements of the crime of official misconduct.” Further, said the court, in determining whether the statutory exception applies only the allegations of misconduct complained of and described in the charges and specifications are considered and the court may not consider any evidentiary proof submitted during later proceedings.

The court then rejected the Commissions argument that a general assertion included elsewhere in the notice of discipline that the misconduct described in the charges violated several criminal statutes, including Penal Law §195.00, cured the deficiency. Accordingly, said the court, “the conduct described in the charge[s] would not, if proven in court, constitute a crime," and thus "the statutory exception does not apply, and the charges are untimely."

The Appellate Division ruled that in affirming the discipline imposed upon Employee for time-barred charges the Commission "acted in excess of the grant of authority given [to it] by statute [and] in disregard of the standard prescribed by the legislature." Accordingly, said the court, the Commission's determination "must be annulled," and the disciplinary charges filed against Employee dismissed as untimely.

* Civil Service Law §76(1), in pertinent part, provides that an individual may appeal an adverse disciplinary determination “either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of Article seventy-eight of the civil practice law and rules.”

** See CPLR §7504 [g].

The decision is posted on the Internet at:

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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