November 9, 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"(c) Repealed.*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 Palmyrapursuant 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"


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