Discretionary acts by a public official

Discretionary acts by a public official

Discretionary acts by a public official involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result, Tango v Tulevech, 61 NY2d 34.

Pre-hearing suspension without pay

Pre-hearing suspension without pay

Gilbert v Homar, 520 US 924

Is a public employee entitled to a hearing before he or she may be suspended without pay? In Gilbert v Homer the U.S. Circuit Court of Appeals, Third Circuit, ruled that a public employee is always entitled to a hearing before being suspended without pay. According to ruling, while a public employer may be justified in suspending an employee immediately, and before it is possible to conduct a hearing, "the added suspension of pay" requires that a hearing be conducted before removing the individual from the payroll.

Ultimately the United States Supreme Court held that a pre-deprivation hearing is not required where, as here, an employee is suspended without pay after having been convicted of a felony, because that conviction (1) “demonstrate[s] that the [deprivation] is not arbitrary” and (2) “serve[s] to assure that the . . . employer’s decision . . . is not ‘baseless or unwarranted.”

§75 of New York's Civil Service Law authorizes the suspension of an employee without pay for up to 30 days once he or she has been served with disciplinary charges. This raises the question of the possible impact of the Gilbert ruling in §75 suspension without pay situations. It may be possible to distinguish the Gilbert case from a §75 situation because of the limited duration of the suspension under §75 - 30 days - and the fact that the employee would be awarded back pay for any such suspension if acquitted of the charges.

What about a provision in a Taylor Law agreement providing for the immediate suspension of an employee without pay upon the occurrence of certain events? Probably the courts would take a more narrow view in applying Gilbert in such cases on the theory that the parties had agreed to the suspension without pay in the course of collective bargaining.

The decision is posted on the Internet at:

https://www.law.cornell.edu/supct/html/96-651.ZO.html

Local police officers in New York State require a warrant to arrest an immigrant solely to transfer custody to federal Immigration and Customs Enforcement authorities

Local police officers in New York State require a warrant to arrest an immigrant solely to transfer custody to federal Immigration and Customs Enforcement authorities

People ex rel. Wells v DeMarco, 2018 NY Slip Op 07740, Appellate Division, Second Department

Susai Francis, an Indian national living on Long Island, had overstayed his visa. Arrested for driving under the influence [DUI] in Nassau County, he was transferred to Suffolk County to complete a criminal proceeding. Francis plead guilty to disorderly conduct to dispose of the criminal charge and was sentenced to "time served." Suffolk County police rearrested Francis at the request of Immigration and Customs Enforcement [ICE] and incarcerated in a jail cell in Riverhead rented by ICE.

The Appellate Division ruled that Suffolk police went beyond their authority in violation of State Law when it honored  ICE's request to hold someone as "local law enforcement officers are not authorized to effectuate arrests for civil law immigration violations."

In contrast, said the Appellate Division, local police could do so if ICE produced a warrant "signed by a judge."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07694.htm

State and subdivisions of state are subject to ADEA regardless of its number of employees in contrast to a private sector employer where the law applies only to "an industry affecting commerce" having twenty or more employees

State and subdivisions of state are subject to ADEA regardless of its number of employees in contrast to a private sector employer where the law applies only to "an industry affecting commerce" having twenty or more employees

Mount Lemmon Fire District Petitioner v John Guido, Et Al., Cite as: 586 U. S.____ (2018)

The Mount Lemmon Fire District laid off its two oldest full-time firefighters, John Guido (then 46) and Dennis Rankin (then 54). Guido and Rankin sued the Fire District, alleging that their termination violated the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq.

The Fire District sought dismissal of the suit on the ground that the District was too small to qualify as an “employer” within the ADEA’s as the controlling definition in 29 U. S. C. §630(b), provides that the term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees and the Fire District had fewer that 20 employee.  

The Supreme Court ruled that  in accord with the United States Court of Appeals for the Ninth Circuit, that §630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees but with respect to a states or a political subdivision of a state, there is not "numerosity limitation" it matters not whether the Fire District had five employees or five hundered employees insofar as the reach of ADEA was concerned.

The Supreme Court agreed and ruled in favor of Guido and Rankin.

Challenging a disqualification for appointment or continued employment

Challenging a disqualification for appointment or continued employment

Civil Service Law §50.4

§50.4 of the Civil Service Law, Disqualification of applicants or eligibles, provides that the "state civil service department or a municipal commissions [emphasis supplied] may refuse to examine an applicant, or after examination to certify an eligible" for one or more of the following reasons:

"(a) lack of a requirements for admission to the examination or for appointment to the position; or

"(b) has a disability which renders him or her unfit to perform in a reasonable manner the duties of the position or which may reasonably be expected to render him or her unfit to continue to perform the duties of the position in a reasonable manner; or

"(c) Repealed.*

"(d) was found guilty of a crime; or

"(e) was dismissed from a permanent position in the public service upon stated written charges of incompetency or misconduct, after notice and hearing or who has resigned from, or whose service was otherwise terminated from a position in the public service for incompetency or misconduct, provided, however, in cases of dismissal, resignation or termination after written charges of incompetency, the individual is seeking employment in a position that requires the performance of a duty or duties which are the same as, or similar to, the duty or duties of the position from which the individual was dismissed, resigned or terminated on account of incompetency; or

"(f) intentionally made a false statement of any material fact in his or her  application for examination or employment; or

"(g) practiced, or attempted to practice, any deception or  fraud in his or her application, examination, or in securing eligibility or appointment; or

"(h) was dismissed from private employments because of habitually poor performance.

"However, no person shall be disqualified pursuant to §50.4 unless he or she has been given a written statement of the reasons for such disqualification and given an opportunity to make an explanation and to submit facts in opposition  to such disqualification."

 Further, the state civil service department or appropriate municipal commission  may investigate the qualifications and background of an eligible after  he has been appointed from the list, and upon finding facts which if  known prior to appointment, would have warranted his or her disqualification,  or upon a finding of illegality, irregularity or fraud of a substantial  nature in his application, examination or appointment, may revoke such  eligible's certification and appointment and direct that his employment  be terminated, provided, however, that no such certification shall be  revoked or appointment terminated more than three years after it is  made, except in the case of fraud.

See, also, 4 NYCRR 3.2. Typically local civil service commissions/personnel officers have adopted a similar rule or regulation.

§12-107 of New York City Administrative Code, addressing the publication of notice of appointments, removals, and changes of salaries, provides that "Notice of all appointments and removals from office, and all changes of salaries except those resulting from collective bargaining or original jurisdiction adjustments, shall be transmitted within one week after they are made, by the appointing agency or department head, to and published within thirty days in the City Record, indicating the name, title and salary of each individual appointed, promoted, demoted, removed from office or whose services have otherwise terminated, and whether an appointment is a "provisional appointment." 

Conspicuous by its absence, however, is any reference to "disqualification" of an applicant for employment or an employee. Accordingly, the question of "disqualification" being within the ambit of §12-107 or remaining under the authority of the Department of Citywide Administrative Services consistent with the provisions of §815 of Chapter 35 of the City Charter is worthy of further exploration. 

Further, case law holds that being disqualified pursuant to 50.4 does not trigger a right to a hearing, only the right to submit a written objection to the decision making entity.

For example, the Wayne County Civil Service Commission disqualified an employee and removed him from his position as a police officer with the Village of Palmyrapursuant to Section 50.4 of the Civil Service Law. The Commission had determined that the police officer had "intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application". The employee sued, claiming he could not be removed from the position without a hearing (Mingo vs Pirnie, 55 NY2d 1019).

The Court of Appeals rejected Mingo's argument, stating that Section 50.4 "requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification". No hearing is required.

The Commission had found that Mingo had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from previous employment.

In Matter of Ferrine, 75 AD2d 669, the Appellate Division explained that §50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person by the Civil Service Department, a municipal commission or a personnel officer, be given to the individual, together with an opportunity for the individual to submit a written explanation to the disqualifying entity. In the event the individual is an employee and is not given an opportunity to submit facts in opposition to the disqualification, the dismissal is unlawful. In this instance the entity filed to provide the employee with such an opportunity and the court directed that the individual be reinstated with back salary.

* Repealed, Laws of 1958, Chapter 790. §50.4(c) provided as follows: (c) "who is addicted to the use of narcotics, or who is addicted to the use of intoxicating beverages to excess; or"