Challenging not being selected for a provisional appointment

Challenging not being selected for a provisional appointment

Cameron v Church, 309 AD2d 747

Is an individual entitled to a court order directing his or her provisional appointment or promotion to a position if there is proof that the reason for the applicant's nonselection was bias on the part of the individual making the employment decision? This was the issue in the Cameron case.

Terence R. Cameron challenged Westchester County's Commissioner of Transportation Marvin Church's appointment of Florence Petronio as a provisional “Program Specialist.” He obtained a court order from State Supreme Court Justice Nastasi directing Church to appoint him to the position.

Although the Appellate Division vacated Justice Nastasi's ordering Cameron's appointment to the position, it upheld the lower court's finding that Church's decision to reject Cameron's promotion request was arbitrary and capricious. The court said that the County failed to introduce any proof to controvert Cameron's evidence that he was denied the requested promotion “because of the personal animosity of Church towards his cousin.”

Although the Appellate Division held that Cameron was not entitled to an order directing that he be given the provisional promotion he wanted, it said that he was entitled to “consideration of his application on the merits, without improper factors” and remanded the matter to the lower court for further action. 

Disciplinary penalty vacated as too harsh

Disciplinary penalty vacated as too harsh

Lagala v NYC Police Dept., 286 AD2d 205; Leave to appeal denied, 97 NY2d 605

Courts have consistently ruled that an administrative disciplinary penalty imposed on an individual must be upheld “unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.” A leading case setting out this principle: Pell v Board of Education, 34 NY2d 222. In Pell, the Court of Appeals said that a disciplinary penalty “shocks the judicial conscience when it is so graven in its impact that it is disproportionate to the offense.”

In the Lagala case the Appellate Division, First Department, applied the Pell standard and determined that the disciplinary penalty imposed on Lagala -- dismissal -- “shocks the judicial conscience.” The court directed that the matter be returned to the Commissioner for his reconsideration of the appropriate penalty to be imposed.

New York City police officer Anthony Lagala challenged his dismissal after he was found guilty of disciplinary charges alleging that he had (1) improperly issuing summonses for parking violations and (2) used a Department scooter without authorization.

The reasons given by the Appellate Division for vacating the disciplinary penalty imposed on Lagala and remanding the matter to the Commissioner of Police:

1. Lagala's sergeant testified that she never noticed deficiencies in the summonses he wrote, nor did she speak to him regarding the summonses he issued, although she spoke to 30 or 40 other officers about their deficiencies.

2. Lagala's performance evaluation for the period in question rated him between competent and highly competent.

3. The record showed that Lagala could not have taken the scooter without having obtained a supervisor's consent.

4. There is no evidence in the record that Lagala's misconduct involved dishonesty, venality or threat to public safety.

The court, referring to Pell, ruled that considering the relevant circumstances, the sanction of dismissal was so disproportionate to these “minor offenses” as to shock “one's sense of fairness.” 

DiNapoli’s Office Completes School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Central Islip Union Free School District; the Eden Central School District; and, the Fonda-Fultonville Central School District..

In addition, Comptroller DiNapoli posted his completed audits of the City of Binghamton; the Town of Elma; the Elmont Fire District; the Town of Farmersville; Orange County; the Town of Orange; the Village of Penn Yan; and, the Village of Sherman.

These audits have been posted on the Internet and may be accessed by clicking on the name of the school district or municipality.

And the winner is….

And the winner is….

Goggle statistics

Goggle Statistics reports that as of August 1, 2011 “Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively” the most read item posted on NYPPL.

Originally posted on July 13, 2010, it is found at: http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html