Appointment of an eligible from an expired eligible list is impossible as a matter of law

Appointment of an eligible from an expired eligible list is impossible as a matter of law
Matter of Farrison, 2010 NY Slip Op 51113(U), Decided on June 24, 2010, Supreme Court, New York County, Judge Hunter [Not selected for publication in the Official Reports]

John D. Farrison filed a petition pursuant to CPLR Article 78 seeking an appointment as a New York City Correction Officer. Farrison contended that the Department of Correction's [DOC] decision not to select him from the eligible list resulting from Correction Officer Examination 2004 for such an appointment to one of three available vacancies was arbitrary, capricious, and contrary to law.

Supreme Court dismissed Farrison’s petition, commenting that the redress he sought would require that he be appointed from the eligible list resulting from Correction Officer Examination No. 4002, a list that had expired prior to his initiation of his Article 78 action.

In view of this, Judge Hunter said Farrison claim that that DOC's decision not to appoint as a Correction Officer was arbitrary, capricious, and contrary to law, is without merit. The court explained that once a civil service eligible list expires, it cannot be revived and an individual whose name appears on an expired eligibility list cannot be appointed to a civil service position on that basis.

As the Court of Appeals said in Cash v Bates, 301 NY 258, appointment to a civil service title from an expired civil service eligible list a "legal impossibility."*

In addition, Judge Hunter cited Hancock v. City of New York, 272 AD2d 80, in which the Appellate Division, held that a "plaintiff, whose name appears on a now-expired civil service list, is no longer entitled to be hired as a correction officer, notwithstanding that he was improperly declared to have been ineligible for the job."

* To provide for a remedy for the "impossiblitity" of appointing an individual from an expired eligible list, Section 243.7 of the Military Law authorizes the establishment of "special eligible lists" to accommodate situations involving an eligible list that expired while a candidate is on ordered military service. It provides that "Any person whose name is on any eligible list ... while in military duty ... is reached for certification during his [or her] military duty ... [his or her name] shall be placed on a special eligible list in the order of his [or her] original standing ... [and such special eligible] list shall be certified before certification shall be made from a subsequent open competitive or promotion eligible list for the same position .... Such names shall remain on such special eligible list for a period of two years after the termination of such military duty...."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51113.htm

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?
Roberson v Ward, App. Div., First Dept., 278 A.D.2d 180; motion for leave to appeal denied, 96 N.Y.2d 717

When must a public officer,* arrested and convicted of a crime, be given a disciplinary hearing in contrast to being summarily terminated? As the Roberson decision demonstrates, it depends on the nature of the offense.

In Bratton v Foley, 92 NY2d 981, the Court of Appeals held that a police officer is removed from his or her position by operation of law if he or she is convicted of a particular crime falling in the "oath of office" or “the conviction of a felony “ category pursuant to Public Officers Law Section 30.1(e).**

In contrast, said the high court, for other convictions -- i.e., those not constituting a violation of the police officer's oath of office, or in cases where Section 30.1(e) is not cited as authority for the termination, "a public hearing is required...." If the police officer is not given such a hearing, he or she may demand one.

The lesson in the Roberson decision is that in the latter type of situation, the police officer must make a timely demand for the hearing.

In 1989 Cedric T. Roberson, was “automatically terminated” from his position as a New York City police officer upon his misdemeanor conviction of menacing in the third degree. Apparently the department relied on an administrative rule as authority for his "automatic termination" rather than Section 30.1(e) of the Public Officers Law.

Some ten years later he asked the court to annul his dismissal, claiming that he was entitled to a "hearing" before he could be terminated from his position.In response to Roberson's claim that he was entitled to a pretermination hearing as announced in Bratton, the court said that "the proceeding is barred by laches...."***

According to the ruling, "[i]t is no excuse for any subsequent delay in challenging his termination that he believed, as a result of advice from his attorney, who opined that any proceeding he might bring to challenge his termination would be futile unless his menacing conviction was overturned on appeal, which did not occur."

What is a "reasonable delay?" It appears that to be "reasonable," it must be a delay of less than two years. According to the decision, Robinson also attempted to obtain a copy of the "order of termination" pursuant to the Freedom of Information Law subsequent to his termination from the police force. However, said the court, this two-year delay "was also unreasonable."


* Although not all public employees are public officers, all public officers are public employees. A police officer is a public officer.

** However, the public officer is entitled to a so-called Bratton Hearing under certain circumstances. A Bratton Hearing flows from Public Officers Law §30.1(e), which provides that a public officer removed from office following his or her conviction of a felony, or a crime involving a violation of his or her oath of office, other than an elected officer, “may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.”

*** A party is guilty of laches if he or she unreasonably delays taking action to enforce his or her legal right[s].

Conducting an administrative hearing

Conducting an administrative hearing
Flood v NYSERS, App. Div., First Dept., 279 A.D.2d 304

Clearly an individual may not be found guilty of disciplinary charges not alleged in the notice of discipline served on the employee. Similarly, a hearing officer in an administrative hearing may not rely on evidence in the record in making his or her determination if the other party was not permitted to challenge or rebut such evidence.

Theresa Flood, a teacher's assistant, was injured aboard a bus during a field trip in November 1990. The New York State Employee's Retirement System denied her application for accidental disability retirement benefits on the grounds that she had not been "incapacitated ... as the natural and proximate result of an accident sustained in ... service". Flood appealed and the issues were framed by the initial Hearing Officer designated to consider the matter as follows:

1. Was there an accident?

2. Is the applicant permanentlyincapacitated? and

3. If so, is the incapacity a proximate result ofthe accident?

The appeal was eventually considered by a different Hearing Officer. Flood's attorney framed the issue before the new hearing officer as simply whether Flood's disability was "the natural and proximate result of an accident sustained in . . . service".

The new hearing officer agreed, cutting off any questioning on "incapacity" on the grounds that there was no "notice to the applicant on that point." He said "causation" was the sole issue to be resolved.

At the conclusion of the hearing the second hearing officer, after acknowledging that the hearings had been limited to the issue of causation, said that "all three questions (accident, incapacity and causation) were once again at issue." His decision, based on the Retirement System's expert's testimony: Flood had failed to establish a "permanent incapacity." That being the case, he denied her appeal without considering the issue of proximate cause.

The Appellate Division vacated the hearing officer's determination, pointing out that Flood "never had an opportunity to pursue or challenge [NYSERS's] testimonial evidence because the issue at the hearing, as framed in the notice, was limited to the question of causation."

The Appellate Division said that "[i]f the issues are to be expanded to cover accident and incapacity as well, then the interests of fairness dictate that [Flood] should have an opportunity to cross-examine the witness and present her own evidence in that respect."

The matter was returned to the Retirement System for a new hearing.

Demanding negotiations concerning changes in the employer's payroll system

Demanding negotiations concerning changes in the employer's payroll system
CSEA and Nassau County, 31 PERB 3032

Nassau County employees in a negotiating unit represented by the Civil Service Employees Association [CSEA] had been receiving their regular pay in one check and any payment for overtime in a second, supplemental check.

The County unilaterally discontinued its practice of issuing two separate paychecks to employees entitled to overtime when it adopted a new payroll system. The new system allowed it to combine an employee’s regular pay and his or her overtime pay, and other payments due the employee, in a single paycheck. The new payroll system also resulted in other processing and payment schedule changes.

CSEA filed an unfair labor practice charge with PERB contending that the payroll change initiated by Nassau County changed or affected mandatory subjects of negotiations and therefore Nassau was barred from making the change unilaterally.

PERB upheld its ALJ’s dismissal of the charge, ruling that Nassau County did not violate the Taylor Law by unilaterally deciding to include overtime [and other payments] in the employees regular paycheck.

Another issue involved the recording of leave accruals and usage. CSEA claimed that the County had discontinued providing unit members with a report of their time and leave record at the beginning of each year. The employees would then use the report to record their accrual and use of leave credits.

PERB said that this had not changed. Rather, the County had discontinued manually entering time and leave information on time cards for record keeping purposes and maintained that information using its new payroll system program. Employees wishing to check their leave and accrual records could do so by viewing a computer screen or reading a computer print out rather than reviewing a traditional “time card.”

Significantly, PERB said that an employer may maintain a record of attendance of its employees and the maintenance of such a record is not mandatorily negotiable.

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims
Watertown v PERB, 95 N.Y.2d 73

In the course of collective bargaining under the Taylor Law the Watertown Police Benevolent Association [PBA] demanded that the question of a police officer’s eligibility for disability benefits pursuant to General Municipal Law Section 207-c be submitted to arbitration.*

When Watertown declined to negotiate the proposal on the grounds that it was not a mandatory subject of negotiations, PBA filed an unfair practice charge with PERB. PERB decided that “because 207-c benefits are a form of wages, procedures which condition, restrict or potentially deny an employee’s receipt of those benefits are terms and conditions of employment and, therefore, are subject to mandatory bargaining” [30 PERB 3072].

PERB also decided that arbitration was an appropriate means of resolving such disputes, holding that “the method for review of a municipality’s determination of eligibility under 207-c is such a procedure.”

Noting that Watertown conceded that “the establishment of 207-c procedures is subject to mandatory negotiations (because the procedure affect terms and conditions of employment), Justice Donahue rejected Watertown’s argument that “the interjection of arbitration in the 207-c eligibility process ‘simply guts’ the municipality’s right to determine eligibility and that [Civil Practice Law and Rules Article 78] is the exclusive method of review.”**

The Court of Appeals agreed, holding that he procedures for contesting the employer’s determinations made pursuant to General Municipal Law Section 207-c were mandatory subject of bargaining.

* General Municipal Law Section 207-c provides disability benefits for police officers injured in the line of duty, including the continuation of the officer in full pay status and the payment of his or her medical expenses associated with the injury. Section 207-a of the General Municipal Law provides for similar benefits for firefighters injured in the line of duty.

** A challenge to an arbitration award is processed pursuant to Article 75 of the Civil Practive Rules and Law rather than via an Article 78 action.