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Friday, November 30, 2018

Employee's termination recommended after being found guilty of multiple charges and specifications


Employee's termination recommended after being found guilty of multiple charges and specifications

A computer associate employed by the New York City Department of Transportation was charged with multiple act of misconduct.

OATH Administrative Law Judge Ingrid M. Addison found the employee guilty of charges and specifications alleging the employee's:

● Being late and absent without leave on numerous occasions;

● Sleeping and lounging on the job on at least 10 occasions;

● Failing to promptly perform her assigned tasks on two occasions;

● Failing to comply with her supervisor’s directive to attend a training session;

● Being on social media on the job via the use of the office computer;

● Becoming loud and disruptive to her supervisor;

● Using Agency’s e-mail system to send abusive e-mails to recipients mainly comprised of her supervisors and directors;

● Sending false information about her director via e-mail which she copied to another New York City agency; and

● Failing to notify her supervisor, the office of labor relations, and the department of investigations that she had been arrested.

Judge Addison recommended that the Department impose the penalty of termination in view of the multitude acts of misconduct for which the employee had been found guilty.





Thursday, November 29, 2018

Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law


Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law
Lance Carlson v. Charter Communications, LLC, USCA, 9th Circuit, No. 17-35917 

N.B. - In handing down this decision the 9th Circuit said "This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3."

§§50-46-320(4)(b) and 50-46-320 (5) of the Montana Marijuana Act [MMA] neither bars employers from prohibiting their employees from using marijuana nor authorizes wrongful termination or discrimination suits against employers.

After Charter Communications fired one of its employees, Lance Carlson, for his legal marijuana use outside of work, in violation of the company's employment policies set out in its employment handbook, Carlson sued Charter alleging wrongful termination and unlawful discrimination.

A Montana District Court dismissed Carlson's complaint and then refused to certify the question of whether these provisions of the MMA were constitutional to the Montana Supreme Court. Carlson appealed the Montana District Court's ruling.

The United States Circuit Court of Appeals, 9th Circuit, affirmed the Montana District Court's ruling explaining that:

 [1] the MMA does not preclude a federal contractor from complying with all the requirements of the Drug-Free Workplace Act (DFWA), 41 U.S.C. §8102; and 

   [2] the MMA does not violate the Montana constitution.*

The Circuit Court observed that MMA is "rationally related to Montana’s legitimate state interest in providing 'careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative' while avoid[ing] entanglement with federal law.” In addition, the Circuit Court, noting that the United States Congress had adopted an appropriations rider currently restricting the Department of Justice from spending funds to prosecute individuals who comply with state marijuana laws, opined that "this temporary rule does not undercut Montana’s legitimate state interests."

In the words of the Circuit Court, "[t]he district court did not abuse its discretion in denying Carlson’s request to certify the question whether sections 50-46-320(4)(b) and (5) are constitutional to the Montana Supreme Court, because it is not an unclear question of state law appropriate for certification."

Lisa M. Schaffer, Esq., in an article posted on the Internet by FindlLaw,** notes that "A state could have a Marijuana Act that specifically prohibits employers from requiring drug-free employees. For instance, in 2018, Maine became the first state to protect workers and their non-workplace marijuana use by forbidding employers from drug testing for marijuana. Specifically, Maine's Act to Legalize Marijuana forbids employers from discriminating against employees based on their legal marijuana use, though it does allow employers to prohibit the use and possession of marijuana 'in the workplace.'" 

* The Carlson decision is posted on the Internet at:



Wednesday, November 28, 2018

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to §75 of the Civil Service Law


Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to Civil Service Law §75 
O'Connor v Cutting, 2018 NY Slip Op 07379, Appellate Division, Third Department

An Essex County deputy sheriff was served four disciplinary charges pursuant to Civil Service Law §75. The appointed Hearing Officer partially sustained two of the four charges and dismissed all the remaining charges. As to the penalty to be imposed, the Hearing Officer recommended that the deputy sheriff be suspended without pay for two months.

The Sheriff then appointed the County Manager to review the §75 Hearing Officer's findings and recommendation and make the final determination. After reviewing the hearing transcripts and exhibits, the City Manager issued a determination that rejected the §75 Hearing Officer's findings, sustained three of the charges and recommended that the deputy sheriff's employment be terminated.

The Sheriff adopted the City Manager's determination and recommended penalty and terminated the deputy sheriff'. The deputy sheriff challenged the Sheriff's decision and sought a court order annulling the City Manager's determination finding her guilty of the disciplinary charges or, in the alternative, an order vacating the penalty of dismissal imposed by the Sheriff. Supreme Court transferred the matter to the Appellate Division, which affirmed the Sheriff's decision.

Citing Matter of Kuznia v Adams, 106 AD3d 1227, the court explained that "The standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole."

Addressing the deputy sheriff's argument that the City Manager had "improperly substituted his own credibility determinations for those of the Hearing Officer," the Appellate Division said that the credibility determinations of a hearing officer are not binding upon the official charged with making a final determination, "who, in the exercise of his or her duty to weigh the evidence and resolve conflicting testimony, may make different factual findings and conclusions, provided they are supported by substantial evidence."

Finding that the City Manager had provided specific reasons for his credibility determinations that were supported by logical inferences drawn from the testimony and the additional evidence that had been adduced at the hearing and that the deputy sheriff was "the least credible witness," the Appellate Division said it found that the City Manager's "factual findings and conclusions" were supported by substantial evidence.

As to the penalty imposed on the deputy sheriff, dismissal from her position, the Appellate Division said that it found that the penalty of termination was "not excessive."

The court said that a penalty imposed by the appointing authority following a §75 disciplinary hearing must the upheld "unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," with due consideration given as to "whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

Finally the Appellate Division observed that it was mindful that great leeway must be accorded in matters concerning police discipline because "a higher standard of fitness and character pertains to police officers than to ordinary civil servants" and, inasmuch as strict discipline is essential for law enforcement administration, "the penalty of dismissal has been routinely upheld for officers who have disobeyed direct orders."

Here, said the court, "we cannot say that dismissing petitioner from her position as a deputy sheriff for disobeying a direct order shocks our sense of fairness."

The decision is posted on the Internet at:


Tuesday, November 27, 2018

Employee terminated for using department vehicle for non-work related purposes


Employee terminated for using department vehicle for non-work related purposes

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.


Monday, November 26, 2018

The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence


The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence
Michel v City of Lackawanna, 2018 NY Slip Op 02070, Appellate Division, Fourth Department

James L. Michel, Jr. commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order reinstating "the compensation and benefits" to which he claim he was entitled pursuant to a contract between the parties. Subsequently Michel moved for summary judgment on the ground that he was unlawfully denied the procedural protections due to him under §75 of the Civil Service Law.

Section 75 provides that certain civil servants "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges."

Supreme Court denied Michel's motion for summary judgment and he appealed the court's decision. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained that "[i]t is well settled" that §75 of the Civil Service Law "prescribes the procedures for removal of a protected employee charged with delinquencies in the performance of his [or her] job."

Citing NYS Office of Children and Family Services v Lanterman, 14 NY 3d 275, the Appellate Division said that it is undisputed that Michel "did not engage in any conduct that would have subjected him to allegations of incompetence or misconduct" and concluded that §75 of the Civil Service Law was inapplicable in his situation.

In Lanterman the Court of Appeals held that the grievances brought by two employees, Lanterman's and Ortiz's, challenging their dismissal from their respective positions were not subject to arbitration because Lanterman's and Ortiz's dismissals were not for disciplinary reasons but because the employees' lacked the qualifications necessary for their respective positions. 

In addition, the  Court of Appeals noted it "approved the distinction made by the Appellate Division in Mandelkern v City of Buffalo, 64 AD2d 279, between issues of 'job performance, misconduct or competency,' which are subject to Civil Service Law disciplinary procedures, and 'a qualification of employment,' which is not."


Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

The Michel decision is posted on the Internet at:

The Lanterman decision is posted on the Internet at:

Friday, November 23, 2018

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests


Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests
Rockland Co. Correction Officers BA and Rockland Co., 30 PERB 3019

The Correction Officers' Benevolent Association of Rockland County filed an unfair labor practice charge with PERB complaining that the Rockland County Sheriff had issued a directive that unilaterally ended a procedure under which all written leave requests were routinely approved regardless of the number of officers on leave from the same shift.

The Association also charged that for the first time "a quota" on the number of officers permitted to take certain types of leave simultaneously was unilaterally imposed.

PERB sustained the administrative law judge's dismissal of the charge. It noted that the relevant collective bargaining agreement provided that "personal leave may be drawn only upon written request ... at a time convenient to and approved by the Sheriff; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted without interference with the proper conduct of government functions."

PERB said that the contract gave the Sheriff broad discretion to grant or deny leaves based on his convenience and the proper conduct of government functions and that the Association had waived its right to complain about the Sheriff's exercising his discretion.

PERB concluded that the directive issued represented the exercise of a negotiated right, it was bilateral in nature and did not violate the employer's duty to bargain, which had been previously satisfied by agreement.


Wednesday, November 21, 2018

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties


Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties
Brown v Bratton, 2018 NY Slip Op 07541, Appellate Division, First Department

Subdivision 1 of §72 of the Civil Service Law, Leave for ordinary disability, provides, in pertinent part, that "[w]hen in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction. Written notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position shall be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

Supreme Court denied Lisa Brown's petition seeking to annul and vacate New York Police Department's [NYPD] decision to refer her for a fitness-for-duty evaluation that ultimately resulted in Brown's suspension without pay for 58 days for "disobeying orders to sign Health Insurance Portability and Accountability Act [HIPAA] releases."

Brown alleged that NYPD had required her "to submit to a fitness-for-duty evaluation without complying with Civil Service Law §72." Supreme Court ruled that NYPD's actions were not arbitrary and capricious and Brown's allegations were not supported by substantial evidence.

The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division decided that Brown failed to show that §72 was implicated in the New York Police Department [NYPD] decision to refer her for a fitness-for-duty evaluation. Although noting that §72 clearly states that "its procedural protections are triggered when an employer has determined that an employee is unfit for duty, at which point the employee is entitled to written notice of the grounds for the determination and an opportunity to challenge those grounds at a hearing," the Appellate Division said that witnesses for the NYPD had testified that, at the time Brown was referred for evaluation, NYPD [1] had not reached this threshold determination and [2] that the purpose of the evaluation was to insure, Brown's "worrisome on-the-job conduct notwithstanding", that she remained fit for duty.

The Appellate Division said that NYPD could not have provided Brown with the written notice to which she claims she was entitled because "it had neither adjudged her unable to perform her duties nor placed her on leave."

In any event, §72.1 vests such decision making in "a medical officer selected by the civil service department or municipal commission having jurisdiction," and requires the appointing authority to provide "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position ... be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

§72.1 further provides that "[i]f, upon such medical examination, such medical officer shall certify that such employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority shall notify such employee that he or she may be placed on leave of absence. An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor. Such notice shall contain the reason for the proposed leave and the proposed date on which such leave is to commence, shall be made in writing and served in person or by first class, registered or certified mail, return receipt requested, upon the employee. Such notice shall also inform the employee of his or her rights under this procedure. An employee shall be allowed ten working days from service of the notice to object to the imposition of the proposed leave of absence and to request a hearing."

In contrast, §72.5 provides that "if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately."

As to suspending an employee "for disobeying orders to sign HIPAA releases," it would appear that such an offense would result were the employee to decline to sign a HIPAA release requested by the medical officer selected by the civil service department or municipal commission having jurisdiction to evaluate the employee.

The Appellate Division found that NYPD's orders "were tailored to receive information from the medical providers that [Brown] had identified and, moreover, were further limited by subsequent agreement."

NYPD, said the court, "showed that the disclosure they ordered [Brown] to provide was appropriate in light of public safety considerations in view [of Brown's position as a] Supervisor Police Communication Technician, insuring that emergency 911 calls were immediately and accurately routed to the appropriate emergency responders, implicated public safety issues, giving the NYPD an interest in the records sufficient to outweigh [Brown's] privacy rights," citing O'Connor v Pierson, 426 F3d 187.

The decision is posted on the Internet at:

Tuesday, November 20, 2018

Teacher sues to recover damages for alleged defamatory statement contained in an e-mail


Teacher sues to recover damages for alleged defamatory statement contained in an e-mail
2018 NY Slip Op 07701, Appellate Division, Second Department

The tort of defamation may refer to an alleged false statement, communicated orally [slander] or in a writing [libel], that injures an individual's "reputation" or his or her "good name" in the community.

The Plaintiff in this action contended that the Defendant sent an email to the Plaintiff''s adult children in which Defendant alleged Plaintiff, a teacher, had engaged in an act of "professional misconduct" and "communicated the [D]efendant's opinion of the character of the [P]laintiff" to the children.

Supreme Court granted Defendant's motion to dismiss the action and Plaintiff appealed. The Appellate Division sustained the lower court's action.

The court, citing Mann v Abel, 10 NY3d 271, explained that a defamatory statement constituting "pure opinion" is not actionable under New York State Law because expressions of opinion, in contrast to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.

Here, however, the Appellate Division observed that although the subject email communicated the Defendant's opinion of the character of the Plaintiff, the email also set forth disputed allegations of fact that had a precise meaning which were readily understood and which were capable of being proven true or false, and in context, the email could be reasonably understood to proffer assertions of fact. Thus, said the court, the subject email communication contained potentially actionable statements of fact.

In a defamation action the plaintiff must allege that he or she suffered special damages - the loss of something having economic or pecuniary value unless the statement is defamatory per se. Plaintiff in this action, however, did not allege special damages nor did the subject email did not "charge the [P]laintiff with any serious crime" or having any "loathsome disease."

Noting that "one statement in the email referred to alleged professional misconduct by the [P]laintiff," a teacher, the Appellate Division concluded that "under these circumstances that allegation of a single instance of professional misconduct is not actionable" and the email did not contain any other statements that could be deemed defamatory per se.

With respect to statements deemed "defamatory per se", in Geraci v Probst, 15 NY3d 336, the Court of Appeals sustained a trial court's instruction to the jury that Probst's statement was defamatory per se because it alleged that Geraci had committed a crime, in this instance "a violation of the General Municipal Law related to the exercise of [Geraci's] public office" and that the statement was false.

In Golub v Enquirer/Star Group, 89 NY2d 1074, the court opined that "Generally, a written statement may be defamatory 'if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community'", quoting Mencher v Chesley, 297 NY 94. Damages will likewise be presumed for statements that charge a person with committing a serious crime or that would tend to cause injury to a person's profession or business. 

In this action, however, Appellate Division, for the reasons indicated above, sustained the Supreme Court's determination to grant Defendant's motion to dismiss Plaintiff's cause of action alleging defamation.

The decision is posted on the Internet at:


Monday, November 19, 2018

Writ of Mandamus


Writ of Mandamus
2018 NY Slip Op 07694, Court of Appeals

In this action the Court of Appeals affirmed the Appellate Division's dismissing the Plaintiffs' petition seeking a writ of mandamus to compel the New York City Police Department and the New York City Department of Health and Mental Hygiene to enforce certain laws.

The court explained that a writ of mandamus "is an extraordinary remedy 'that is available only in limited circumstances,'" citing Matter of County of Chemung v Shah, 28 NY3d 244. Mandamus, said the Court of Appeals, is available as a remedy "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law."

Further, although mandamus to compel "is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion," as the court held in Matter of Gimprich v Board of Educ. of City of N.Y., 306 NY 401.

As to what constitutes a "discretionary acts" such acts involve the exercise of reasoned judgment which could typically produce different acceptable results in contrast to ministerial acts involving "direct adherence to a governing rule or standard with a compulsory result." Indeed, mandamus may only be used to compel a public officer to execute a legal duty; it may not "direct how [the officer] shall perform that duty," as was noted in People ex rel. Schau v McWilliams, 185 NY 92.

In this action the enforcement of the laws cited by the Plaintiffs would involve some exercise of discretion. Additionally, Plaintiffs did not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Thus, concluded the Court of Appeals, "mandamus is not the appropriate vehicle for the relief sought."

The decision is posted on the Internet at:


Friday, November 16, 2018

Local police officers in New York State require a warrant to arrest an immigrant solely to transfer custody to federal Immigration and Customs Enforcement authorities


Local police officers in New York State require a warrant to arrest an immigrant solely to transfer custody to federal Immigration and Customs Enforcement authorities
People ex rel. Wells v DeMarco, 2018 NY Slip Op 07740, Appellate Division, Second Department

Susai Francis, an Indian national living on Long Island, had overstayed his visa. Arrested for driving under the influence [DUI] in Nassau County, he was transferred to Suffolk County to complete a criminal proceeding. Francis plead guilty to disorderly conduct to dispose of the criminal charge and was sentenced to "time served." Suffolk County police rearrested Francis at the request of Immigration and Customs Enforcement [ICE] and incarcerated in a jail cell in Riverhead rented by ICE.

The Appellate Division ruled that Suffolk police went beyond their authority in violation of State Law when it honored  ICE's request to hold someone as "local law enforcement officers are not authorized to effectuate arrests for civil law immigration violations."

In contrast, said the Appellate Division, local police could do so if ICE produced a warrant "signed by a judge."

The decision is posted on the Internet at:



Monday, November 12, 2018

State and subdivisions of state are subject to ADEA regardless of its number of employees in contrast to a private sector employer where the law applies only to "an industry affecting commerce" having twenty or more employees


State and subdivisions of state are subject to ADEA regardless of its number of employees in contrast to a private sector employer where the law applies only to "an industry affecting commerce" having twenty or more employees
Mount Lemmon Fire District Petitioner v John Guido, Et Al., Cite as: 586 U. S.____ (2018)

The Mount Lemmon Fire District laid off its two oldest full-time firefighters, John Guido (then 46) and Dennis Rankin (then 54). Guido and Rankin sued the Fire District, alleging that their termination violated the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq.

The Fire District sought dismissal of the suit on the ground that the District was too small to qualify as an “employer” within the ADEA’s as the controlling definition in 29 U. S. C. §630(b), provides that the term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees and the Fire District had fewer that 20 employee.  

The Supreme Court ruled that  in accord with the United States Court of Appeals for the Ninth Circuit, that §630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees but with respect to a states or a political subdivision of a state, there is not "numerosity limitation" it matters not whether the Fire District had five employees or five hundered employees insofar as the reach of ADEA was concerned.

The Supreme Court agreed and ruled in favor of Guido and Rankin.

Friday, November 09, 2018

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it
Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Appellate Division, Fourth Department

Supreme Court, Chautauqua County directed that Jakubowicz, an employee of the Village of Fredonia be "fully reinstated to his former employment with full back pay and benefits retroactive to the date of his termination." The Village appealed.*

The Appellate Division first addressed "Appeal No. 2" in which the Village contended that a commercial driver's license is a minimum qualification for Jakubowicz's position as a Mechanic II in the Village and that "his failure to maintain such minimum qualification required the termination of his employment."

The court rejected the Village's claim, noting that the Mechanic II position in the Village required  possession, "at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator's license appropriate for the type of vehicles which the employee may from time to time operate."

Explaining that due process and fundamental fairness require that a qualification or requirement for employment must be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee, the Appellate Division said that in this instance the  requirement of a commercial driver's license is not "expressly stated."

In addition, said the court, quoting Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110, while "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", the Village in this instance offered Jakubowicz a hearing "to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment." However, there is no dispute that a hearing was never held.

Accordingly, the Appellate Division concluded that Supreme Court was correct in determining that Jakubowicz's termination was arbitrary and capricious.

* The Village submitted two appeals, denominated Appeal 1 and Appeal 2, but dismissed Appeal 1 as academic in view of its ruling with respect to Appeal 2.

The decision is posted on the Internet at:

Thursday, November 08, 2018

Challenging a disqualification for appointment or continued employment

Challenging a disqualification for appointment or continued employment
Civil Service Law §50.4

§50.4 of the Civil Service Law, Disqualification of applicants or eligibles, provides that the "state civil service department or a municipal commissions [emphasis supplied] may refuse to examine an applicant, or after examination to certify an eligible" for one or more of the following reasons:

(a) lack of a requirements for admission to the examination or for appointment to the position; or

(b) has a disability which renders him or her unfit to perform in a reasonable manner the duties of the position or which may reasonably be expected to render him or her unfit to continue to perform the duties of the position in a reasonable manner; or

(c) Repealed.*

(d) was found guilty of a crime; or

(e) was dismissed from a permanent position in the public service upon stated written charges of incompetency or misconduct, after notice and hearing or who has resigned from, or whose service was otherwise terminated from a position in the public service for incompetency or misconduct, provided, however, in cases of dismissal, resignation or termination after written charges of incompetency, the individual is seeking employment in a position that requires the performance of a duty or duties which are the same as, or similar to, the duty or duties of the position from which the individual was dismissed, resigned or terminated on account of incompetency; or

(f) intentionally made a false statement of any material fact in his or her  application for examination or employment; or

(g) practiced, or attempted to practice, any deception or  fraud in his or her application, examination, or in securing eligibility or appointment; or

(h) was dismissed from private employments because of habitually poor performance.

However, no person shall be disqualified pursuant to §50.4 unless he or she has been given a written statement of the reasons for such disqualification and given an opportunity to make an explanation and to submit facts in opposition  to such disqualification.

 Further, the state civil service department or appropriate municipal commission  may investigate the qualifications and background of an eligible after  he has been appointed from the list, and upon finding facts which if  known prior to appointment, would have warranted his or her disqualification,  or upon a finding of illegality, irregularity or fraud of a substantial  nature in his application, examination or appointment, may revoke such  eligible's certification and appointment and direct that his employment  be terminated, provided, however, that no such certification shall be  revoked or appointment terminated more than three years after it is  made, except in the case of fraud.

See, also, 4 NYCRR 3.2. Typically local civil service commissions/personnel officers have adopted a similar rule or regulation.

§12-107 of New York City Administrative Code, addressing the publication of notice of appointments, removals, and changes of salaries, provides that "Notice of all appointments and removals from office, and all changes of salaries except those resulting from collective bargaining or original jurisdiction adjustments, shall be transmitted within one week after they are made, by the appointing agency or department head, to and published within thirty days in the City Record, indicating the name, title and salary of each individual appointed, promoted, demoted, removed from office or whose services have otherwise terminated, and whether an appointment is a "provisional appointment." 

Conspicuous by its absence, however, is any reference to "disqualification" of an applicant for employment or an employee. Accordingly, the question of "disqualification" being within the ambit of §12-107 or remaining under the authority of the Department of Citywide Administrative Services consistent with the provisions of §815 of Chapter 35 of the City Charter is worthy of further exploration. 

Further, case law holds that being disqualified pursuant to 50.4 does not trigger a right to a hearing, only the right to submit a written objection to the decision making entity.

For example, the Wayne County Civil Service Commission disqualified an employee and removed him from his position as a police officer with the Village of Palmyra pursuant to Section 50.4 of the Civil Service Law. The Commission had determined that the police officer had "intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application". The employee sued, claiming he could not be removed from the position without a hearing (Mingo vs Pirnie, 55 NY2d 1019).

The Court of Appeals rejected Mingo's argument, stating that Section 50.4 "requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification". No hearing is required.

The Commission had found that Mingo had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from previous employment.

In Matter of Ferrine, 75 AD2d 669, the Appellate Division explained that §50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person by the Civil Service Department, a municipal commission or a personnel officer, be given to the individual, together with an opportunity for the individual to submit a written explanation to the disqualifying entity. In the event the individual is an employee and is not given an opportunity to submit facts in opposition to the disqualification, the dismissal is unlawful. In this instance the entity filed to provide the employee with such an opportunity and the court directed that the individual be reinstated with back salary.

* Repealed, Laws of 1958, Chapter 790. §50.4(c) provided as follows: (c) "who is addicted to the use of narcotics, or who is addicted to the use of intoxicating beverages to excess; or"

Wednesday, November 07, 2018

Judicial review of an administrative determination made after an adversarial hearing is limited


Judicial review of an administrative determination made after an adversarial hearing is limited
Buccieri v County of Westchester, 2018 NY Slip Op 07305, Appellate Division, Second Department

A Westchester County employee [Petitioner] was served with disciplinary charges and specifications pursuant to §75 of the Civil Service. The appointing authority, the Commissioner of the Westchester County Department of Parks, Recreation and Conservation [Commissioner], suspended Petitioner without pay for 30 days while the §75 disciplinary action was pending.*

The §75 hearing officer found Petitioner guilty of a number of the specifications set out in the charges and recommended a penalty: a 30-day suspension without pay. The Commissioner adopted the findings of the hearing officer and imposed the penalty recommended, suspension with out pay for 30 days.**

Petitioner filed a CPLR Article 78 petition seeking judicial review of the Commissioner's determination, contending that the Commissioner was not a qualified decision maker.

Supreme Court agreed, finding that the Commissioner had actively participated in the underlying events leading up to the disciplinary proceeding. Thus, said the court, the Commissioner should have recused herself from reviewing the hearing officer's findings and recommendation and rendering a final determination.

Accordingly, Supreme Court remanded the matter the Commissioner to appoint a duly qualified, impartial decision maker to review the hearing officer's findings and recommendation and to render a new determination.

The Commissioner appointed a Westchester County Department of Human Resources Deputy Commissioner to review the hearing officer's findings and recommendation and to render a new final determination, and if Petitioner was found guilty of any of the charges and specification filed against Petitioner, the to be imposed.

The Deputy Commissioner adopted the findings and the penalty recommended by the §75 hearing officer, suspension of Petitioner's for 30 days without pay. Petitioner then commenced this proceeding pursuant to CPLR Article 78 seeking a judicial review the Deputy Commissioner's determination.

The Appellate Division set out the following guidelines followed by courts in reviewing a challenge to an administrative determination such as one made after a §75 disciplinary hearing:

1. Judicial] review of an administrative determination in an employee disciplinary case made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence.

2. It is the duty of the administrative tribunal, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject.

3. A court may set aside the penalty imposed by an appointing authority only if it found to be so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.

* An employee so suspended without pay pursuant to §75 must be respored to the payroll after 30 days pending a final disciplinary determination by the appointing authority.

** The time during which an officer or employee is suspended without pay may be considered as part of the penalty at the discretion of the appointing authority. If he or she is found not guilty of all charges and specifications, he or she shall be restored to his or her position with back pay for the period of his or her suspension without pay less the amount of any unemployment insurance benefits he or she may have received during such period.

The decision is posted on the Internet at:


Monday, November 05, 2018

An employee alleged not to possess a minimum qualification required for the performance of the duties his or her position is entitled to notice of the allegation and the opportunity to contest it


An employee alleged not to possess a minimum qualification required for the performance of the duties his or her position is entitled to notice of the allegation and the opportunity to contest it
Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Appellate Division, Fourth Department

Supreme Court, Chautauqua County directed that Jakubowicz, an employee of the Village of Fredonia,  be "fully reinstated to his former employment with full back pay and benefits retroactive to the date of his termination." The Village appealed.*

The Appellate Division first addressed "Appeal No. 2" in which the Village contended that a commercial driver's license is a minimum qualification for Jakubowicz's position as a Mechanic II in the Village and that "his failure to maintain such minimum qualification required the termination of his employment."

The court rejected the Village's claim, noting that the Mechanic II position in the Village required  possession, "at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator's license appropriate for the type of vehicles which the employee may from time to time operate."

Explaining that due process and fundamental fairness require that a qualification or requirement for employment must be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee, the Appellate Division said that in this instance the  requirement of a commercial driver's license is not "expressly stated."

In addition, said the court, quoting Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110, while "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", the Village in this instance offered Jakubowicz a hearing "to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment." However, there is no dispute that a hearing was never held.

Accordingly, the Appellate Division concluded that Supreme Court was correct in determining that Jakubowicz's termination was arbitrary and capricious.

* The Village submitted two appeals, denominated Appeal 1 and Appeal 2, but the Appellate Division dismissed Appeal 1 as academic in view of its ruling with respect to Appeal 2.

The decision is posted on the Internet at:


Unauthorized recording of a court proceeding


Unauthorized recording of a court proceeding
Matter of Attorney Grievance Committee M-3080, 2018 NY Slip Op 07278, Appellate Division, First Department

Attorney Grievance Committee M-3080 for the First Judicial Department instituted disciplinary against an attorney alleging the attorney had made an unauthorized recording of a court proceeding in violation of New York Rules of Professional Conduct, 22 NYCRR 1200.0 rule 8.4(d), Conduct Prejudicial to the Administration of Justice.

The Committee found the attorney guilty of professional misconduct and a Referee was appointed to conduct a sanction hearing. Ultimately the parties stipulated that the attorney had engaged in a pattern of misconduct that was prejudicial to the administration of justice.

Noting  that [1] the attorney had no disciplinary history nor had ever been sanctioned by any court for misconduct; [2] the misconduct arose in the course of a contentious domestic relations action in which the attorney appeared pro se; [3] the attorney at the time of the incident had limited experience in the practice of law; and [4] the attorney had acknowledged  the wrongfulness of making an unauthorized recording in light of Rule 8.4(d), the Appellate Division found that " public censure" was an appropriate penalty and granted the parties' motion for "discipline by consent."

The decision is posted on the Internet at:


Friday, November 02, 2018

Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits


Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits
Hughey v Metropolitan Transp. Auth., 2018 NY Slip Op 02129, Appellate Division, First Department

Plaintiff in this action retired from his position with the Long Island Rail Road, an MTA subsidiary, at age 63.49. Plaintiff, as a commuter rail employee, was also eligible to  receive Tier II pension benefits after the requisite years of service under the Railroad Retirement Act. In addition, MTA employees receive pension benefits from the MTA Pension Plan.

Article 3.07(a)(ii) of the MTA Pension Plan, provide for an "offset" that reduced the amount of benefits payable under the Plan by the benefits "which would be payable to the Member involved at age 62 under Tier II. "Plaintiff, however, was still in service at age 62 and did not retired from MTA at age 63.49. Accordingly, the amount of the offset was determined by the MTA's Board of Managers on the basis of Plaintiff's actual age at the effective date of his retirement, 63.49 years of age.

Plaintiff sought a review of the Board's determination basing his pension benefits on his actual age at retirement, 63.49 years rather than determining his pension benefits to be that which would have been payable had he actually retired at age 62, a difference of $160.83 per month.

The Board denied Plaintiff's appeal, which determination was affirmed by the Appellate Division. 

The court explained that "Article 6.02 of the Plan conferred on its Board of Managers" sole and absolute discretionary authority to interpret the Plan and decide any dispute and all matters arising in connection with the operation or administration of the Plan, as well as to decide questions, including legal and factual questions, relating to the calculation and payment of benefits under the Plan.

The decision is posted on the Internet at:


Thursday, November 01, 2018

Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious


Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious
Hayes v Nigro, 2018 NY Slip Op 07124, Appellate Division, Second Department

New York City Firefighter Sean Hayes charged with violating New York City Fire Department [FDNY] rules and regulations barring the use of prohibited substances.

In lieu of going forward with a disciplinary proceeding, Hayes settled the matter by entering into a stipulation with the FDNY that [1] allowed him to vest his pension in lieu of facing the penalty of termination and [2] set out his admission to conduct reflecting discredit upon the FDNY arising out of his testing positive for methadone during a random drug test while he was working and violations of the oath of office.

Some three years later Hayes applied for reinstatement to his former position with FDNY. His application was rejected by the Commissioner in consideration of his disciplinary record and the untimeliness of the request. Hayes then initiated an Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement to his former position of firefighter.*

The Supreme Court denied the Article 78 petition and Hayes appealed the court's decision.

Sustaining the Supreme Court's decision, the Appellate Division explained that:

1. A request to the Commissioner for the reinstatement of a firefighter must be made within one year from the date of his or her separation from the FDNY and Hayes' request some three years after his resignation was untimely;

2. Reinstatement is not a right and the decision to reinstate a former employee is within the sole discretion of the Commissioner, and who is not required to state a reason for denying the reinstatement; and

3. The Commissioner's determination rejecting the request will be sustained  unless it is shown to be arbitrary or capricious or an abuse of discretion.

In this instance, said the court, Hayes did not seek to be reinstated as a FDNY firefighter until almost three years after he had left the FDNY after admittedly illegal and potentially dangerous conduct. Thus, said the Appellate Division,  agreeing with Supreme Court, "the determination of the Commissioner was not arbitrary, capricious, or an abuse of discretion."

Addressing Hayes' efforts with respect to "discovery," the Appellate Division said that such discovery was "not relevant to the Commissioner's individualized and discretionary assessment of [Hayes'] application" for reinstatement.

* Hayes also sought discovery of the FDNY's records of all applicants for reinstatement for the period from January 2014 to the date of the commencement of his Article 78 proceeding. 

The decision is posted on the Internet at:

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