Request for reconsideration of an administrative determination does not extend the statute of limitations for perfecting an appeal

Request for reconsideration of an administrative determination does not extend the statute of limitations for perfecting an appeal
Raykowski v NYC DOT, App. Div., 1st Dept, 259 AD2d 367

Sometimes an individual who has been adversely affected by an administrative decision asks the appointing authority to reconsider its determination. However, as the Raykowski decision indicates, such a request will not excuse the individual’s failing to file a timely challenged to the decision itself.

Michael Raykowski was terminated from his position with the City of New York Department of Transportation because he failed to “maintain a city residence.” Although he asked for reconsideration of the decision terminating his employment, the Appellate Division said that asking for reconsideration “did not extend the applicable four-month [Statute of] limitations ....”

The Appellate Division commented that challenges to administrative decision had to be brought pursuant to Article 78 [Article 78, Civil Practice Law and Rules]. Such an action must be commenced within four month of the final administrative determination.

Significantly, the decision notes that a “fresh, complete and unlimited examination on the merits” will revive the Article 78 statute of limitation. However, the Court ruled that the Department’s meeting with Raykowski eight months after his termination did not satisfy this test and therefore his petition had to be dismissed as untimely.

This decision points out the danger of an employer’s agreeing to reconsider an earlier final administrative decision. If the court determines that the agency’s reconsideration is a fresh, complete and unlimited review of the underlying issue, the Statute of Limitations for the purposes of bringing an Article 78 will commence to run from the date the final determination of the agency’s “reconsideration.”
NYPPL

Rescinding a resignation

Rescinding a resignation
Otero v Safir, 258 AD2d 297

After being served with disciplinary charges involving allegations that subjected him to criminal charges, New York City police officer Louis Otero submitted his resignation from the force rather than testify at a disciplinary hearing. Later Otero asked a New York State Supreme Court justice to direct the Department to rescind his resignation. When the Supreme Court dismissed his petition, he appealed.

The Appellate Division denied Otero’s appeal. It said that Otero’s resignation was “strategically motivated and not the result of fraud, overreaching or other misconduct on [Department’s] part, was not improperly obtained and, accordingly, may not be judicially countermanded,” citing Cacchioli v Hoberman, 31 NY2d 287.

This case illustrates the general principle that an individual’s request to withdraw a resignation or to have it rescinded is subject to the discretionary approval of the appointing authority. Generally courts will intervene only in situations where the former employee proves that the resignation was the result of fraud or coercion.

Courts will also direct the rescinding of a resignation for certain types of “mistakes.”

For example, a teacher was told that she was a probationer and would not be recommended for tenure. She submitted her resignation solely to avoid having her personal record indicate that she was terminated for failure to satisfactorily complete her probationary period. It was later determined that the teacher had completed her probationary period and had acquired tenure prior to her submitting the resignation.

In Gould v Sewanhaka CSD, 81 NY2d 446, the Court of Appeals approved the rescinding of Gould’s resignation on the theory that the teacher had submitted her resignation under the mistaken belief that she was a probationer.
NYPPL

Reversal of an employee’s criminal conviction may require reconsideration of a disciplinary action based on the acts or omissions

Reversal of an employee’s criminal conviction may require reconsideration of a disciplinary action based on the acts or omissions
Beard v Newburgh, 259 AD2d 613, motion for leave to appeal denied, 93 NY2d 958

Town of Newburgh police officer Joseph Beard asked a state Supreme Court judge to vacate an arbitration award upholding his dismissal from the department based on various rule violations.

Beard complained that an arbitrator gave “collateral estoppel effect” to Beard’s conviction in a criminal matter related to the same events. Even though the criminal judgment was still under appeal at the time, the arbitrator rule that Beard’s criminal conviction automatically made him guilty of various disciplinary offenses stemming from the same underlying events.

The arbitrator ruled that because Beard was found guilty in the criminal action, the doctrine of collateral estoppel required that he be found guilty in the administrative disciplinary proceeding as well.*

On appeal, Beard persuaded an Appellate Division panel to overturn the arbitrator’s ruling. The Appellate Division said the arbitrator’s determination had to be vacated because Beard’s conviction, which was the sole factual basis for the arbitration award, was reversed on appeal. Accordingly, the court directed that a new hearing of the issues be held by the arbitrator.

The Town of Newburgh also argued that Beard’s termination should stand because Section 30.1(e) of the Public Officers Law mandates removal from public office as the automatic penalty in the event a public officer is found guilty of a felony or the violation of his or her oath of office.

However, observed the Appellate Division, was not terminated pursuant to Section 30.1(e) and therefore its applicability was not an issue raised before the arbitrator. Accordingly, “the applicability of the statute is not properly before this court.”

Had Beard been removed from his public office** by operation of law pursuant to Section 30.1(e) of the Public Officers Law, the under the law Beard could have requested reinstatement following the reversal of his conviction.

Section 30.1(e) provides that a non-elected official may ask the appointing authority for reinstatement upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy resulting from the application of Section 30.1(e). The appointing authority is required to hold a hearing to determine whether reinstatement is warranted.

Further, in addition to “the final judgment of the court which reversed or vacated such conviction,” an appointing authority may consider the entire employment history of the individual.

Section 30.1(e) further provides that "Upon its consideration of such information, and any other submissions, the appointing authority may, in its discretion, reappoint the individual to his or her former office, or to a similar office if the former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof."

* In Kelly v. Levin, 440 NY2d 424 the Appellate Division ruled that acquitting an employee in an administrative disciplinary action is a reversible error if the individual has been found guilty of a criminal act involving the same allegations.

** A police officer is a public officer for the purposes of Section 30 of the Public Officers Law.
NYPPL