ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

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:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.