May 28, 2019

The anatomy of a challenge to a civil service commission's action rescinding an employee's appointment based on a criminal conviction

In consideration of the employee's [Plaintiff's] criminal history, the County Civil Service Commission [Commission] revoked Plaintiff's eligibility, certification and appointment to his Title A position, resulting in the termination of Plaintiff from service. The Commission also disqualified and removed the Plaintiff's name from an eligible list for appointment to a different title, Title B. Plaintiff initiated an Article 78 action challenging the Commission's decisions.

The record indicates that Plaintiff, in connection with his application for Title A, disclosed certain criminal history to the Commission. The Commission later sent letters to Plaintiff seeking additional documents and information concerning his criminal history. Although Plaintiff did not provide the documents sought by the Commission,* as the result of an administrative error, Plaintiff was certified eligible and, subsequently, appointed to the Title A position.

Subsequently, the County facility where Plaintiff worked was to be privatized. In accordance with an agreement enabling employees who did not want to work for the privatized company to be transferred to other job titles or work locations, Plaintiff applied for the Title B position and in connection with his application for the Title B position Plaintiff disclosed prior criminal convictions that had not been disclosed when he applied for the Title A position.

Ultimately the Commission notified Plaintiff that it was revoking his eligibility certification and appointment, terminating his employment in Title A and disqualifying him from the eligible list for the Title B position. The reasons advanced by the Commission for its actions with respect to the Title B position were Plaintiff's "disrespect for the process of law and order as evidenced by your record of convictions and failure to cooperate with your investigation." Plaintiff appealed the Commission's decision, submitting letters attesting to his good character and good work performance, as well as educational and training certificates he had earned. The Commission then advised Plaintiff that "it had determined that the 'original notification of disqualification stands,' and that [Plaintiff] will be terminated from his [Title A] position and removed from [Title B eligible list].

Plaintiff thereupon commenced his CPLR Article 78 proceeding challenging the Commission's  determination. Supreme Court, granted so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for the Title B position. The Commission appealed the Supreme Court's determination but the Appellate Division sustained the lower court's ruling.

The Appellate Division addressed a number of elements crucial to its consideration of the Commission's appeal.

Procedure: Judicial review of an administrative determination made without a formal hearing is limited to whether the determination was arbitrary or capricious or without a rational basis in the administrative record, and once it has been determined that an agency's conclusion has a sound basis in reason, the judicial function is at an end.**

Controlling statutory law: Civil Service Law §50[4] provides that the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, "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 . . . 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 this instance the Commission's determination to revoke the Plaintiff's eligibility certification and appointment and terminate his employment in Title A found arbitrary, capricious, and without a rational basis in the administrative record as Plaintiff was appointed to this position in 2011. Accordingly,, the Commission was precluded from revoking his certification and terminating his appointment from his Title A position in 2016 except for fraud. The Commission, however, did not alleged it bases its determination on the ground of fraud.***

Considering the Commission's determination to disqualify the Plaintiff from the eligible list for the Title B position, the Appellate Division concluded that its ruling was arbitrary, capricious, and without a rational basis in the administrative record as it was conceded that Plaintiff disclosed his prior convictions when seeking employment in a Title B position. Further, opined the court, "the record provided no sound basis to conclude that the Plaintiff failed in 2016 to cooperate with the investigation or to disclose material facts."

Addressing Plaintiff's criminal convictions, the Appellate Division cited Article 23-A of the Correction Law, explaining that this provision "protects persons who seek employment, after having been convicted of one or more criminal offenses, from unfair discrimination" and prohibits both public sector and private sector employer to deny a license or employment application by reason of the individual's having been "previously convicted of one or more criminal offenses" absent one of two exceptions permitted set out Correction Law §752 in applies.**** These exceptions are:

[a] There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

[b] The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public"

The Appellate Division said that there nothing in the record indicating that the Commission determined that an exception to Correction Law §752 was applicable or considered the factors to be applied in making that determination.

Thus, said the Appellate Division, it agreed with the Supreme Court's determination granting so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for appointment to the Title B  position.

* Plaintiff later contended that during the investigation into his criminal background he disclosed certain criminal convictions, but was not asked about certain other out-of-state convictions, explaining that he was under the impression that the additional documents the Commission sought pertained to an investigation for a different position that he had applied for, but in which he was no longer interested.

** Where an administrative adjudication made after a formal hearing, Supreme Court would transfer an Article 78 petition seeking judicial to the Appellate Division.

*** Citing Giangiacomo v Village of Liberty, 50 AD2d at 666, the Appellate Division observed that "under the circumstances presented, the record did not reveal the existence of fraud of a substantial nature" in connection with Plaintiff's application for examination and appointment to Title A.

**** Correction Law §753 sets out eight factors an employer is to consider when evaluating an applicant with a criminal record for employment.

The decision is posted on the Internet at:


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