Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Cannavo v Olatoye, 2018 NY Slip Op 03740, Appellate Division, First Department

The Cannavo decision by the Appellate Division is set out below, with comments concerning some of the more "troublesome" elements of the ruling set out in bold in blue.

Supreme Court denied Cannavo's application for reinstatement to his former position with the New York City Housing Authority (NYCHA), and dismissing the proceeding brought pursuant to CPLR Article 78, which ruling was unanimously affirmed, by the Appellate Division without costs. The Appellate Division's ruling states:

"The article 78 court correctly determined, upon consideration of all the facts, that respondents' denial of petitioner's application for reinstatement to his former position with NYCHA was not arbitrary and capricious or an abuse of discretion (see Matter of Roberts v Gavin, 96 AD3d 669, 671 [1st Dept 2012])."

The decision reports that Cannao sought reinstatement with NYCHA following his retirement from NYCHA. As reinstatement of a former employee to his or her former position is a matter subject to the exercise of the discretion of the appointing authority, and absent such denial of the request for a discriminatory reason or unlawful purpose, the appointing authority's denial of the retiree's request for reinstatement is otherwise lawful.

A retiree may be reemployed following his or her retirement subject to the limitations set out in §150 of the Civil Service Law. Further, §13-119 and 13-178 of the New York City Administrative Code addressed a retired member's eligibility to rejoin the relevant retirement system without any limitation based on "jurisdictional classification" of the position to which reemployment is sought.

The decision then continues:

"Despite petitioner's previous position as a "civil service" employee with the New York City Department of Housing Preservation and Development (HPD), when he was hired by NYCHA in 1996, it was in a non-competitive position that was not eligible for civil service status, as NYCHA's records reflect." 

The Civil Service of the State of New York, in contrast to the "military service" of the State of New York, consists of positions Exempt Class [CSL §41]; the Non-competitive Class [CSL §42]; the Labor Class [CSL §43] and the Competitive Class [CSL §44], which positions are in the "Classified Service" and positions the Unclassified Service, which positions are set out in CSL §35. 

No explanation or justification is provided with respect to the representation that Canno "was not eligible for civil service status" with NYCHA.

As to the status of HPD and NYCHA, the list of "New York City Agencies" listed on the Official Website of the City of New York includes, among other agencies:

●  Housing Authority, New York City (NYCHA)  and

●  Housing Preservation and Development, Department of (HPD)

As Yul Brynner exclaims in The King and I, "is a puzzlement!" as to why Canno "was not eligible for civil service status" with NYCHA because of the jurisdictional class of the position.

Upon a review of records kept by HPD, NYCHA, and the Department of Citywide Administrative Services, respondents determined that petitioner's civil service status had not been formally transferred from HPD to NYCHA, and, since only those who have civil service status are eligible for reinstatement following retirement, rationally concluded that petitioner was not eligible for reinstatement.

This conclusion is troublesome as it appears that Canno resigned from his position in the "Civil Service" with HPD in favor of a de novo appointment to a position in "Civil Service" in the Non-competitive Class with NYHCA. The decision is silent with respect to the basis for the determination that petitioner lacked "civil service status" with NYCHA.

Further, there is no bar to the reinstatement of a retiree to his or her former position should the appointing authority approve such a reinstatement regardless of the jurisdictional classification of the position involved. 

The reinstatement, reappointment, reemployment or new appointment of a person otherwise qualified receiving a New York State public retirement system benefit is permitted at the discretion of the appointing authority, subject to the provisions and limitations set out in CSL §150 with respect to the suspension  of the individual's  pension  and  annuity and limits on compensation during such public employment.

The opinion continues:

While petitioner claims that certain NYCHA documents — including a notification of appointment and performance reviews he received in 1996 — reflect that he maintained his competitive civil service status, the record shows that he subsequently had many conversations with Human Resources and took actions to obtain a formal transfer. Moreover, attached to the petition is a 1996 memo from Human Resources informing petitioner that he did not, in fact, possess this status. As the court found, this is not a rare or extraordinary case in which the doctrine of estoppel or laches should be applied against a government agency (see Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]).

With respect to the noting that Canno "took actions to obtain a formal transfer" as here relevant [see NYCRR 1.2(b)(1)], assuming, but not conceding, that such was, in fact, the case, a transfer from a position under the jurisdiction of one appointing authority to a position under the jurisdiction of a different appointing authority requires the approval of both appointing authorities.

In contrast, as indicated by 4 NYCRR 1.2(b)(2) , the placement of an individual under the jurisdiction of the appointing authority to another position under the jurisdiction of the same appointing authority having the same title is a "reassignment" not a "transfer."

The bottom line: A individual who retired from a position in the Classified Service is not barred from being reinstated to his or her former position if available and otherwise permitted by the controlling provisions of the Civil Service Law regardless of his or her pre-retirement "appointment status" in such position, i.e., permanent, contingent permanent, temporary, provisional, military substitute, or term and regardless of the jurisdictional classification  or budgetary status of the position in question if otherwise available for appointment thereto. 

The decision concludes:

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2018

CLERK

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2018/2018_03740.htm

Considering the employee's personnel history in setting a disciplinary penalty

Considering the employee's personnel history is setting a disciplinary penalty

Brizel v City of New York, 2018 NY Slip Op 03755, Appellate Division, First Department

Educator was served with disciplinary charges pursuant to Education Law §3020-a. The Arbitrator found the teacher, who had a 27-year career with the New York City Department of Education, guilty of misconduct and terminating his employment.

The Appellate Division confirmed the arbitration award, noting that the Educator's career, "was not without incident, as evidenced by his 2008 settlement of disciplinary charges." The court then observed that the Arbitrator "properly considered" an earlier settlement of those charges in setting the disiplinary penalty in this instance. In addition the Appellate Division noted that the Educator failed to acknowledge the gravity of his misconduct, continues to deny wrongdoing, and attempted to shift blame to his students.

Considering an employee's personnel history in setting a disciplinary penalty is permitted provided, as the Court of Appeals held in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470 and Doyle v Ten Broeck, 52 NY2d 625, the individual is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

Further, as the court noted in Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

In determining the appropriate penalty to be imposed, relevant issues include considering if this is the employee’s first offense of this nature, or is there a pattern of such offenses and had the employee been disciplined or served with disciplinary notice in the past.

In sustaining the Arbitrator's determination as to the penalty to be imposed in this instance, the Appellate Division said that "Under the circumstances presented, the penalty of termination does not shock our sense of fairness," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03755.htm

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Andino v Mills, 2018 NY Slip Op 04273, Court of Appeals

Does a retired New York City police officer's accident disability retirement (ADR) benefits are a collateral source that a court must offset against the injured retiree's jury award for future lost earnings and pension?

The Court of Appeals held that a New York City retired police officer's accident disability retirement (ADR) benefits does so operate by [1] replacing earnings during the period when the officer could have been employed absent the disabling injury and then [2] serving as pension allotments. Accordingly, a court must offset the retiree's projected ADR benefits against the jury award for both categories of economic loss.*

Niurka Andino [Plaintiff] is a retired police officer who was injured on duty while riding in a police car that collided with a vehicle owned by the New York City Transit Authority (NYCTA) and operated by NYCTA employee Ronald Mills [Defendants].

Defendants moved to offset the jury award pursuant to CPLR §4545, which permits a court to find that certain awarded damages were or will, with reasonable certainty, be replaced or indemnified from a collateral source. Defendants contended that "when a police officer retires due to an on-the-job injury that leaves the officer disabled, the ADR benefits allotted to that officer for those years when the officer could have been working, if not for the disability, operate as lost earnings. Once the retired officer reaches the age for regular retirement from service, absent the retirement-inducing injury, ADR benefits serve as a pension."

Andino argued that [1] "there is no direct correspondence between her ADR benefits and the categories of economic loss awarded by the jury" and [2] "that ADR displaces Ordinary Disability Retirement (ODR), and the higher amount of ADR benefits as compared with ODR allotments is paid as a reward for services previously rendered." As the Court of Appeals characterized Andino's argument, "... the premium in ADR benefits as compared to ODR benefits is neither "earnings" nor "pension" but paid in gratitude for past services".

The Court of Appeals explained that ADR benefits, and the text and legislative intent of CPLR §4545, as interpreted by the court in Oden v Chemung County, 87 NY2d 81,** provide the basis for concluding that "ADR benefits operate sequentially as payment for future lost earnings and pension benefits." Accordingly, said the court, on a motion pursuant to CPLR §4545, "a court must apply ADR benefits, dollar-for-dollar, to offset the jury award for future lost earnings during the period they represent lost earnings, and future lost pension during the period they represent lost pension."

The court also rejected Andino's alternative argument that "ADR benefits are a 'reward' for the retiree's service which may not be offset against a jury award" as unpersuasive, explaining that "there is no support in the Administrative Code or CPLR §4545 or any available legislative history to treat ADR benefits as a category on its own, exempt from mandatory offset." In any event, said the court, "even if the Legislature sought to reward service members like Andino, who suffer an injury in the line of duty, that would not change the classification of ADR benefits as a replacement for lost earnings and pension allowances" as there is no legal justification for treating a portion of ADR benefits as a reward based on the 25% differential between ODR and ADR benefits. In the words of the Court of Appeals, "CPLR 4545 anticipates a dollar-for-dollar  offset" and that offset "is based on the category of reimbursement, not on a stratification of the collateral source total amount."

The case was remitted Supreme Court for further proceedings "in accordance with the opinion herein and, as so modified, affirmed," Judges Wilson dissenting in an opinion in which Judge Fahey concured.

* By stipulation, the parties agreed to set the period for future lost earnings at 19.24 years and future lost pension at 17.7 years.

** The specific facts of Oden, said the court, explain why that decision provides a different disposition than is called for Andino's case. In Oden, the plaintiff's private sector retirement pension benefits could not offset the jury's award for his future lost earnings because the pension allotments did "not necessarily correspond to any future earning capacity plaintiff might have had," because Oden "would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04273.htm

Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing

Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing

Guzman v Bratton, 2018 NY Slip Op 03648, Appellate Division, First Department

Applying the preponderance of the evidence standard, the hearing officer found Petitioner, a New York City police officer, guilty of both specifications set out in the disciplinary charges filed against Petitioner. The penalty recommended by the hearing officer: to imposed on the Petitioner: dismissal from employment.

The appointing authority adopted the findings and recommendation of the hearing officer and dismissed Petitioner from the New York Police Department.

Petitioner appealed, contending, among other things, that the hearing officer applied the "preponderance of the evidence" standard in determining finding Petitioner guilty of the disciplinary charges filed against him instead of applying the "substantial evidence standard."

The Appellate Division noted that the "preponderance of the evidence standard" used by the hearing officer in determining that Petitioner was guilty of the disciplinary charges and specification is a higher standard than the substantial evidence standard that Petitioner argued should have been employed by the hearing officer.

Thus, said the court, "contrary to Petitioner's claims," the appointing authority relied upon the hearing officer's findings based on a higher, rather than lower, standard of proof in adopting the hearing officer's findings and the hearing officer's recommendation as to the penalty to be imposed.

Addressing the penalty imposed on Petitioner, termination from his position, the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, explained that the court reviewing an administrative disciplinary action must uphold the sanction imposed by the appointing authority "unless it is so disproportionate to the offense that it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."

Here, opined the court, "the penalty of termination of employment is not disproportionate to the misconduct and does not shock the conscience" in view of the fact that Petitioner was found guilty of two acts of serious misconduct, which adversely affected the integrity of the Police Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03648.htm

Lawsuit to recover damages for wrongful death of a student dismissed

Lawsuit to recover damages for wrongful death of a student dismissed

Juerss v Millbrook Cent. Sch. Dist., 2018 NY Slip Op 03518, Appellate Division, Second Department

A student suspended from Millbrook Middle School after the school's principal concluded that the she had engaged in an act of student misconduct committed suicide later that day.

Plaintiffs, as administrators of the student's estate sued the Middle School's principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District [Defendants] alleging the student's suicide was caused by the Defendants' negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.

In this action to recover damages for wrongful death, Supreme Court granted the Millbrook Central School District's motion to dismiss the Plaintiffs' complaint. The Appellate Division the lower court's determination.

With respect to the Defendants' motion to dismiss the complaint for failure to state a cause of action, the Appellate Division said that "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Citing Michaan v Gazebo Hort., Inc., 117 AD3d 692, the court said that in so doing, said the court, "the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference."

Applying these principles, the Appellate Division explained that (a) New York does not recognize a cause of action sounding in negligent investigation and (b) "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York."

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03518.htm