Application for a professional license denied based on a finding that the applicant lacked "good moral character"

New York State's Education Law §8405[3][f] requires that an applicant for a New York State psychoanalyst license must "[b]e of good moral character."

In this CPLR Article 78 action, an applicant [Petitioner] for "licensure as a psychoanalyst" challenged the rejection of his application based on the New York State Department of Education's [SDE] determination that Petitioner "lacked good moral character." Supreme Court transferred the Article 78 action to the Appellate Division.*

The Appellate Division's decision indicates that Petitioner had been licensed as a social worker by SDE in 1984 and subsequently was a licensed clinical social worker [LCSW] in several other states. At the time Petitioner applied for a New York State psychoanalyst license he was living in another state and held a LCSW a license issued by the state in which he then resided.

The reasons advanced by SDE in support of its decision to deny Petitioner "licensure as a psychoanalyst" included the following:

[a]  In 2003 Petitioner pleaded guilty in Rockland County Court to grand larceny in the third degree in full satisfaction of multiple charges pertaining to false billings submitted to a private insurance company during the period June 1999 to August 2001 and his New York license was suspended for one year;

[b] In 2005 Petitioner pleaded guilty, again in Rockland County Court, to two counts of grand larceny in the second degree, admitting that he filed false claims with the state and federal Medicaid programs and was allowed to surrender his New York license;** and

[c] Following testimony from Petitioner and several witnesses on his behalf, the SDE Hearing Panel determined that Petitioner did not meet the moral character requirement and that the application should be denied, which decision was sustained by SDE's Committee on the Professions.

 The Appellate Division observed that:

[1] "[W]hether an applicant seeking professional licensure has demonstrated "good moral character" is to be determined by the appropriate body and if "made after an evidentiary hearing", the determination will be upheld if supported by substantial evidence;"*** and

[2]  §752 of the Correction Law provides that a license application shall not "be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of 'good moral character' when such finding is based upon [the prior convictions], unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license ... sought ...; or (2) the issuance ... of the license ... would involve an unreasonable ... to the safety or welfare of specific individuals or the general public."

Noting that the parties agreed that the above cited standard applied here, at issue was SDE's determination that both exceptions have been established, i.e., that [1] there is a direct relationship between Petitioner's convictions and the work of a psychoanalyst and [2] that the issuance of a license to Petitioner would present an unreasonable risk to the safety and welfare of the public. 

Although Petitioner contended that SDE failed to consider the specific factors outlined in Correction Law §753 in making this determination, the Appellate Division said that its review of the record "shows otherwise" in that SDE "reasonably determined that Petitioner's improper billing practices as an LCSW were directly relevant to the same responsibilities that he would have to his clients and the involved insurers as a licensed psychoanalyst."

The decision also notes that Petitioner receive a certificate of relief from disabilities for his first conviction as provided by Correction Law §753[2]) but Petitioner's other convictions came two years later.

In consideration of the records before it, the Appellate Division found that the determination denying Petitioner's license application was supported by substantial evidence.

* CPLR §7804[g], in relevant part, provides that Supreme Court shall transfer an Article 78 action to the Appellate Division in the event an administrative determination required by law was after a hearing at which evidence was taken.

.** The decision notes that Petitioner retained his LCSW license issued by another state "under supervision".  

*** Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03865.htm

Declining a particular fringe benefit does not convert the value of the employer's contribution for such benefit into additional salary or other compensation

The appointing authority [Town] employed two town justices. Both justices have the same job functions and receive an identical annual salary. The Town also offers both town justices the opportunity to participate in its employee health insurance plan. While the Justice A elected to participate in this plan, Justice B elected not to do so and, in lieu of receiving health benefits, made several unsuccessful requests seeking additional compensation equal to the cost of the "employer contribution" to the Town to provide Justice A with health insurance coverage.

Ultimately Justice B sent a letter to the Town's supervisor formally requesting this additional compensation, contending that health insurance coverage was a component of a town justice's salary and that, because her fellow town justice was receiving this benefit and she was not, she was being compensated less than the other justice in violation of Town Law §27.1. After Justice B's request was denied by the Town, she initiated an Article 78 action seeking, among other things, a declaration that the Town's denial of her request for additional compensation violated Town Law §27.1. The Town answered the petition and, following oral argument, Supreme Court found Justice B's claim to be without merit and dismissed her petition and complaint. Justice B appealed the ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that Town Law §27.1  provides, in relevant part, that "[t]he town board of each town shall fix . . . the salaries of all officers and employees of said town" and that "the salaries of all town justices shall be equal," unless otherwise agreed upon by a majority vote of the town board."

Although §27 does not define the term "salary," the Appellate Division noted that in Bransten v State of New York, 30 NY3d 434 the Court of Appeals, considering the State Constitution's Judicial Compensation Clause, Article VI, §25[a], and held that the state's employer contributions toward a justice's health insurance coverage "is not part of [his or her] judicial salary" nor considered "a permanent remuneration for expenses necessarily incurred in fulfillment of judicial obligations."

Finding that both Town Justice A and Town Justice B have received identical salary and benefits, "including eligibility to participate in the Town's health insurance plan," the Appellate Division opined that the fact that Justice B had chosen to forgo participating in the Town's health insurance plan did not transform the Town's employer contribution towards the plan it made on behalf of Justice A, who did elect to participate in the Town's health insurance plan, into some form of salary differential forbidden under Town Law §27.1.

According, the Appellate Division said it agreed with Supreme Court that the Town's denial of Town Justice B's request for additional compensation did not violate Town Law §27.1.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03864.htm

Seeking a writ of mandamus to compel a public entity to perform a certain action

For many years, Binghamton City Court [City Court] used docket books maintained in hard copy used by the plaintiff to personally compile lists of adjudicated summary eviction proceedings. However, at some point, City Court discontinued their use of hard copy docket books and began maintaining court records electronically. Beginning in 2015, Plaintiffs made several written requests to City Court for all summary eviction proceedings that had been adjudicated since January 1, 2014.

Plaintiff was advised that City Court did not maintain its records in the specific manner that he was requesting and that he could access the electronically-stored court records by providing a case name or index number. In addition, the Town of Union Court [Town Court] similarly notified Plaintiff that it did not maintain a running list of summary eviction proceedings in a form that he had requested.

Ultimately Plaintiff commenced a CPLR Article 78 proceeding in the nature of mandamus seeking to compel City Court and Town Court to, among other things, "maintain all court records in a written form . . . [l]ike the old docket books" and, since the records were maintained electronically, to provide the requested information "on a disk in a form that could be easily used by the public."

City Court answered Plaintiff's petition and alleged that Plaintiff had failed to state a claim. Town Court submitted an affidavit in opposition to Plaintiff's petition, requesting that the petition be dismissed, indicating that, although under no obligation to do so, it had employed an outside information technology company to create the list sought by Plaintiff. Supreme Court ultimately dismissed the petition and Plaintiff appealed.

The Appellate Division, citing Matter of County of Chemung v Shah, 28 NY3d 244, affirm the lower court's ruling, explaining that a "writ of mandamus"* is an extraordinary remedy that lies only to compel the performance of "an administrative act positively required to be done by a provision of law." In the words of the Appellate Division, "[s]uch a writ will not be awarded to compel the performance of an act involving the exercise of judgment or discretion or to direct the manner in which a public official carries out his or her legal duty to complete a ministerial act."

Finding that the records demonstrated that both City Court and Town Court were satisfying their duties under Judiciary Law §§255 and 255-b by maintaining an electronic docketing systems that was available for search and examination by members of the public with the assistance of court staff, the Appellate Division ruled that neither City Court nor Town Court were statutorily required to maintain their respective court dockets "in the particular manner requested by Plaintiff or create the list that Plaintiff desires."

Finding that City Court and Town Court cannot be compelled to perform their ministerial duties in the specific manner sought by Plaintiff, the Appellate Division ruled that Supreme Court had properly dismissed the Plaintiff's Article 78 petition.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_03863.htm