January 18, 2019

Qualifications for employment in the public service mandated by statute may not be waived


Qualifications for employment in the public service mandated by statute may not be waived
Martin, as Administratrix of The Estate of Christos Lekkas v State of New York et al., 82 AD2d 712

Christos Lekkas, a permanent Assistant Clinical Physician in the then Office of Mental Retardation and Developmental Disabilities,* [OMRDD] was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to Education Law §6522 of the Education Law which provides that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician," Lekkas initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas be given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge."

Prior to its repeal in 1971 §6512.1(b) of the Education Law had exempted full-time employees of a State hospital from the normal requirement of a State license to practice medicine. Announcements for civil service examinations for certain physician positions in State hospitals were not updated to reflect  that appointees to these positions now must be licensed to practice medicine by the State of New York. As a result, Lekkas' was permanently appointed an Assistant Clinical Physician following his passing a post-1971 examination for the position.

Supreme Court, addressing the narrow issue of whether a permanently appointed civil service employee in the competitive class may be summarily discharged from his or her position because he or she did not meet the minimum qualifications for the position, citing Ferrine v Bahou, 75 A.D.2d 669, as being dispositive of the issue, ordered Leekas reinstated to his former position with back pay and benefits "without prejudice to further proceedings" deemed advisable by the State.

The State appealed contending that Lekkas was ineligible for employment as an Assistant Clinical Physician because he was not licensed to practice medicine by New York State.

The Appellate Division framed the issue before it as "[w]here, as here, an ineligible applicant is appointed, the issue narrows to whether such an appointee can be discharged without being afforded an opportunity to challenge the reasons for his discharge." The court, affirming the Supreme Court's ruling, explained that resolution of this question turned on whether the qualifications for Assistant Clinical Physician were prescribed by regulation or by statute.

If Education Law, §6522 controlled, it was beyond the power and jurisdiction of the Civil Service Commission or any other administrative body to confer upon an applicant eligibility for appointment "denied to him [or her] by the Legislature."*

If a regulation controlled, the Appellate Division, citing Matter of Wolff v Hodson, 285 N.Y. 197, said that the decision was within the sole power and jurisdiction of the administrative agency and thus no appointee who has obtained permanent appointed to his or her position can be removed without being afforded the procedural rights set forth in §50.4 of the Civil Service Law, "despite the fact that had his [or her] infirmity to qualify for the position been timely known he [or she] would not have been appointed."

Noting that the duties of an Assistant Clinical Physician were defined administratively rather than by statute, the Appellate Division concluded that such duties were amenable to administrative change. The record, said the court, indicates that OMRDD notified Lekkas and others performing medical duties requiring licensure by circulating memoranda advising unlicensed physicians that they must desist from such practice except under the supervision of a licensed physician.**
  
Accordingly, ruled the Appellate Division, the State's contention that Lekkas was subject to job dismissal, without recourse to any benefits of his permanent employee status on the sole ground that he was practicing medicine without a license was without merit as Lekkas' assigned duties as an Assistant Clinical Physician were defined administratively, rather than by statute and thus such duties were amenable to administrative change. Presumably, Lekkas, on the date his employment was terminated, was discharging limited medical duties under the supervision of a licensed doctor.

Thus, said the court, the State's claim that Lekkas was subject to summary dismissal, without recourse to any benefits of his permanent employee status, on the sole ground that he was practicing medicine without a license as required by Education Law §6522 was without merit in view of the fact that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat. Accordingly, said the Appellate Division,  the provisions of the Civil Service Law rather than the Education Law controlled.

In the words of the Appellate Division, While it is clear that decedent would not have been eligible either to take the examination or be appointed if the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, it is equally clear that respondents could not terminate decedent on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment (see Civil Service Law, §50.4). Special Term thus correctly annulled decedent's discharge and ordered respondents to reinstate him with back pay and benefits" and affirmed the lower court's judgment , with costs.

It should be noted that Leekas died subsequent to the perfection of this appeal but prior to oral argument and the administratrix of his estate was substituted as party petitioner. As Special Term ordered Leekas' reinstated with back pay, the possibility exists that his estate could be the beneficiary of monetary benefits if it should ultimately prevail in this matter. Accordingly, the Appellate Division declined to dismiss the appeal on the ground of mootness.

* Subsequently redesignated the Office for People with Developmental Disabilities

** Such physicians were continued in employment and were given a period of time during which they could seek to obtain a New York State license to practice medicine. Leekas failed to obtain the required license prior to the deadline imposed to do so.

The decision is posted on the Internet at:


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