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

Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand

Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand
Daily Gazette Co. and Capital Newspapers [Times Union] v City of Schenectady, 93 NY2d 145

The Court of Appeals has resolved a significant question in ruling that the City of Schenectady did not violate the state Freedom of Information Law (FOIL) when it declined to provide journalists with the names of certain police officers who were involved in an off-duty egg-throwing incident. The court ruled that prohibitions on disclosure of personnel records of public safety officers under Section 50-a of the state Civil Rights Law outweighed both the “plain wording” of FOIL and the legislative intent behind FOIL.

Section 50-a, in pertinent part, provides that all personnel records used to evaluate performance toward continued employment or promotion of police officers, correction officers or firefighters “shall be considered confidential and not subject to inspection or review without the express written consent of such [officers] except as may be mandated by lawful court order.” Such a court order is to be issued only after an in camera [private] inspection by the court and after giving the parties affected notice of the demand and an opportunity to be heard.

Both the Albany Times-Union and the Daily Gazette of Schenectady had asked, pursuant to FOIL (Public Officers Law [POL] Sections 84-90), for the records of the disciplinary action taken against 18 officers. The newspapers wanted the names of the officers who allegedly pelted civilian cars from a bus that was used as transportation for a police officer’s bachelor party. According to news reports, the bus stops included bars and a nude dance club.

Schenectady’s chief of police said that “under a promise of confidentiality,” the 18 officers had admitted their participation in the incident in various degrees, and that disciplinary sanctions imposed ranged from written reprimands to loss of vacation days and overtime pay. The chief refused to provide the newspapers with the names of the officers, citing the FOIL exception for certain records; i.e., records “specifically exempted from disclosure by state or federal statute” (POL Section 87[2][a]).

Newspapers sued under FOIL, but a state Supreme Court justice declined to order Schenectady to provide the information.

The Appellate Division reversed that decision, concluding that the records of the disciplinary actions taken against the 18 officers were not exempt from FOIL disclosure under Civil Rights Law Section 50-a. The city appealed and won a reversal of that ruling by the Court of Appeals, New York’s highest court.

The court observed that Civil Rights Law Section 50-a conflicts with the “plain wording” of Freedom of Information Law, and that the limit that Section 50-a places on disclosure “is contrary to its legislative history and is inconsistent with our FOIL precedents.”

Nevertheless, the Court of Appeals pointed out that the statute “was designed to prevent abusive exploitation of personally damaging information” contained in personnel records of law enforcement personnel. Otherwise criminal defense attorneys could always delve into the personnel records of officers to find information to impeach the credibility of police witnesses. FOIL applications by criminal defense attorneys can be used as a means for “harassment and reprisals and for the purposes of cross-examination,” the court said, citing Matter of Prisoners’ Legal Services, 73 NY2d, at page 31.

In making its ruling, the court set out the following test to determine if the refusal to disclose records under the FOIL exception is justified:

In evaluating denying a FOIL request for access to a law enforcement officer’s personnel records that are relevant to promotion or continued employment, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law Section 50-a -- to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer.

In the Schenectady case, the individuals seeking information were journalists, not lawyers. However, “confidentiality under Civil Rights Law Section 50-a will not automatically be defeated solely because the person seeking access is a representative of a news-gathering organization, not contemplating litigation....” the court said.

The court appeared concerned that there was “potential abusive exploitation of the damaging information in personnel records exists irrespective of how, at whose behest or for what purpose the information is released into the public domain.”

In this instance, said the court, if the newspapers were to obtain and publish the identities, misconduct and disciplinary sanctions of the 18 Schenectady police officers involved in the incident, “the information will be fully available for all of the forms and practices of abusive exploitation that Civil Rights Law Section 50-a was designed to suppress.”

Noting that the employer has the burden of demonstrating that its rejection of a FOIL demand falls within the permissible exceptions set out in FOIL, the Court of Appeals said that it is not sufficient merely to show that the recorded data may be “used to evaluate performance toward continued employment or promotion” of the officers” in rejecting a FOIL demand.
NYPPL

Hearing officer finds that employee’s failure to comply with an unlawful order is not misconduct for the purposes of disciplinary action

Hearing officer finds that employee’s failure to comply with an unlawful order is not misconduct for the purposes of disciplinary action
Health and Hospital Corporation v A.S., OATH Index #2742/10

OATH Administrative Law Judge Tynia Richard recommended dismissal AWOL charges brought against A.S.,* an employee at the Health and Hospital Corporation’s Bellevue Hospital Center, after the employee declined to report for a “medical clearance” as directed.

Judge Richard found that Bellevue had “improperly conditioned [the employee’s] return to duty upon presentation of medical clearance.”

Bellevue, said Judge Richard, could not, without following the procedures of its Regulation No.1, which the ALJ characterized as “an analog to Section 72 of the Civil Service Law,” compel the employee to undergo an involuntary psychiatric examination based upon a supervisor's unsubstantiated claim that the employee complained that of being ill and then directed the employee to report the employee’s psychiatric condition to the hospital or be barred from returning to work where the employee had displayed no disruptive behavior or performance related problem.

Having failed to comply with the notice requirements of Regulation No.1, the ALJ concluded that the directive to report to the psychiatric examination was not a lawful order. According, Judge Richard ruled that A.S.'s failure to appear for the examination was not misconduct.

* The decision notes that “Respondent’s full name is being withheld for purposes of publication in order to protect [the employee’s] privacy because this decision discusses [the employee’s] medical records which include matters of a personal nature. This accommodation is being made sua sponte [on the ALJ’s own motion] as the parties have not requested it.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2742.pdf
NYPPL