November 19, 2018

Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances


Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances
Aiello v Bratton, 236 A.D.2d 319

May two individuals be promoted following the resolution of disciplinary action, one with "back salary and seniority" and the other denied "back salary and seniority?" As the Aiello decision indicates, this could be lawful under certain conditions.

Richard J. Aiello and another police officer serving with the New York City Police Department were promoted to lieutenant and detective respectively following the resolution of disciplinary charges that had been filed against them. Their respective appointments had been held up while these disciplinary actions were pending.

The detective was appointed retroactively, with back salary and "retroactive seniority." Aiello, on the other hand, was neither given back salary nor "retroactive seniority" when he was promoted.

Aiello sued, contending that the Department had violated his right to "equal protection" by not making his promotion retroactive and awarding him back salary and seniority as well. The Appellate Division rejected Aiello's arguments and dismissed the appeal.

The Court decided that situation underlying Aiello's  promotion to lieutenant and the other officer's promotion to detective were not exactly the same.   

It seems that Aiello's promotion was made from an eligible list for lieutenant and subject to the "rule of one of three" [§61.1, Civil Service Law]. Accordingly, his appointment was subject to the discretionary authority of the Commissioner of Police. As Aiello did not have a vested right to the promotion, he could not claim that he had any right to back salary or seniority upon his promotion from the eligible list.

The appointment of the police officer to detective, however, was quite different. The Court ruled that officer had "a vested right to his promotion to detective under NYPD Directive #27."

Why was this so? It appears that the officer had performed investigatory duties for more than 26 months and thus became entitled to permanent status in the position in accordance with the provisions of Directive #27. When he was reinstated following the resolution of the disciplinary action, his promotion, which had been "placed on hold," had to be made retroactive and thus he was entitled to back pay and seniority as detective.

The automatic permanent appointment of a police officer to the position of detective by NYPD after the officer performed detective or investigatory service for the minimum period prescribed by Directive #27 was upheld by the Court of Appeals in Scotto v Dinkins, 85 NY2d 209. In contrast, the high Court held unconstitutional a statute, §58.4(c) of the Civil Service Law, mandating automatic promotion to detective in other jurisdictions [see Wood v Irvine, 85 NY2d 238, decided the same day].

Finding that the two individuals were not "similarly situated" insofar as the procedures dealing with their advancement in title and grade were concerned, the Court ruled that Aiello had not been denied equal protection and dismissed the appeal.


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