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."

The Michel decision is posted on the Internet at:

The Lanterman decision is posted on the Internet at:


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