March 04, 2019

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service


Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service
Sokol v New York City Civ. Serv. Commn., 2019 NY Slip Op 01314, Appellate Division, First Department

The New York City Civil Service Commission determined that Plaintiff, a candidate seeking appointment as a New York City police officer, was not qualified for the position. Supreme Court dismissed Plaintiff's CPLR Article 78 action challenging the Commission's decision and Plaintiff appealed.

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's Article 78 action. Citing Matter of Smith v City of New York , 228 AD2d 381,  the court explained that "Wide discretion is afforded to civil service commissions in determining the fitness of candidates," and "[t]he exercise of that discretion is to be sustained unless it has been clearly abused."

Noting that Plaintiff had not shown that the Commission's decision disqualifying Petitioner for appointment to the position of police officer was arbitrary and capricious or made in bad faith. Rather, said the Appellate Division, the Commission's determination was rationally based on a number of factors, including, but limited to, Plaintiff's making inaccurate relevant statements in application forms.

§50.4 of the Civil Service Law provides that the State Civil Service Department and appropriate municipal civil service commissions may refuse to examine an applicant, or after examination to certify an eligible for appointment for a number of reasons, including, but not limited to, having been found to lack any of the established requirements for admission to the examination or for appointment to the position or having been found to have intentionally made a false statement of any material fact in his or her application.

No person, however, may be disqualified pursuant to §50.4 unless he or she has been given a written statement of the reasons such disqualification and allowed to submit an explanation and to submit facts in opposition to such disqualification.*

In addition, §50.4 authorizes the review of the qualifications and background of an eligible after he or she has been placed on an eligible list or has been appointed to a position from an eligible list and further provides:

 1.  An individual may be disqualified for the position to which he or she has been appointed "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 [or her] application, examination or appointment," and

 2. The Civil Service Department or the responsible municipal civil service commission may "revoke such eligible's certification and appointment and direct that his [or her] 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."

* In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals noted that no §50.4 hearing is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01314.htm

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