Review of an administrative determination by courts is limited in scope

Review of an administrative determination by courts is limited in scope
Matter of Reza v NYC Department of Parks & Recreation, 2007 NY Slip Op 30246(U), Supreme Court, New York County, Judge Charles J. Tejada [Not selected for publication in the Official Reports]

Mohammad Reza sued his employer, the NYC Department of Parks and Recreation [DPR], seeking reinstatement to his position, restoration of certain annual leave credits and other relief, including appointment to a higher-grade position.

Supreme Court Justice Tejada said the scope of a court’s review of a Department’s administrative determination is limited. In reviewing an agency’s decision, the only issue to be resolved by a court is “whether a determination was made in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.”

In a memorandum dated November 28, 2005, Reza’s superiors directed him to refrain from performing duties outside the scope of his job description. This memorandum, said the court, was in the nature of “a clarification of his position within DPR and, as such, subject to only limited judicial review, and will not be disturbed in the absence of a showing that [it is] wholly arbitrary or without any rational basis”.

Reza, said the court, had to demonstrate that the determination is either arbitrary, capricious or afflicted with an error of law sufficient to overcome the great deference courts will typically give to an administrative agency’s decision in order to prevail. Judge Tejada decided that he failed to meet this test.

Further, as a provisional employee of the DPR, Reza did not have any entitlement to the higher-level position of Associate Project Manager, Level III, and rather then being “fired,” was ordered to perform only the duties required of him by his job description as an Associate Engineering Technician, Level II. This was well within the Department’s authority to command said the court.

Reza also claimed “retaliation” as a result of his having written to the Commissioner complaining about his superior’s “actions against him” in violation of his First Amendment Rights.
Judge Tejada said that a public employee who seeks to prevail in his or her First Amendment claim of employment retaliation must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiffs speech was a motivating factor in the adverse employment action.

In the opinion of the court, Reza failed to meet this burden as well and denied his petition.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2007/2007_30246.pdf

Termination of a probationer

Termination of a probationer
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209

In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.

The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that proba­tionary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.

The court rejected the Village's argument that because Miller was a probationary em­ployee it had the right to terminate his employment for any reason or for no reason.*

The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Mil­ler's] political affiliations did not play a substantial part in the decision to terminate him."

In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.

In its appeal the Village apparently also argued that Miller was "a policy-making em­ployee cloaked with considerable discretion, and thus his political affiliation was a relev­ant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."

Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employ­ment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.

Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illi­nois, 497 US 62.

* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

Use of a videotape as evidence in disciplinary hearing

Use of a videotape as evidence in disciplinary hearing
Paulin v City of New York, App. Div., 288 A.D.2d 153

On of the elements in the Paulin case was the use of a videotape in a disciplinary hear­ing.

Fred Paulin, a New York City police officer, was charged with misconduct. The Police Commissioner found Paulin guilty of having stolen merchandise from a store and imposed the penalty of dismissal.

In dismissing Paulin's appeal, the Appellate Division ruled that the Commissioner's decision was supported by substantial evidence, including a videotape of the incident.

Further, said the court, under the circumstances, imposing the penalty of dismissal "does not shock our sense of fairness."