Right to an appointment

Right to an appointment

Mitchell v Board of Education, Appellate Division

From time to time an individual on a civil service eligible list will sue in an effort to obtain an appointment to a vacant position that the appointing authority has decided not to fill. Assuming that the appointing authority is acting in good faith, it is well settled that an appointing authority is not required to fill a vacant position even if a mandatory eligible list for the title exists. This was one of the issues involved in the Mitchell case.

Robert L. Mitchell was eligible and reachable for appointment as an Area Manager of School Maintenance. In fact he alleged that he was "next on the list" for  appointment to the title when the New York City Board of Education abolished two of its four area manager positions. The two positions apparently were vacant at the time they were abolished.

Mitchell sued, seeking a court order directing  his appointment to one of the two abolished positions. The Appellate Division dismissed his position, holding that Mitchell "has not demonstrated any entitlement to relief under the circumstances presented."

Here Mitchell had two problems. First, as the Appellate Division noted, even assuming that he was entitled to consideration for either of the two abolished area manager positions, he was not, as a matter of law, entitled to appointment to the title.

It is well settled that an appointing authority is not required to fill a position that is vacant simply because there is a mandatory, or preferred, eligible list for the title.

 As the Board of Education conceded, Mitchell was eligible for one of the two remaining area manager positions, should one become available prior to the expiration of the eligible list and it elected to fill it.

Further, selection for the appointment would be subject to the so-called "rule of three," Civil Service Law §61. Mitchell would not have any automatic right to selection for appointment merely because he was the highest ranking eligible on the list.

As another illustration as to why Mitchell had no right to an appointment as an area manager, assume that one of the two remaining area manager positions were to be abolished. Presumably a preferred list would be established as a result.

If the remaining area manager position were later to become vacant, clearly the individual on the preferred list would be certified for appointment first, notwithstanding the existence of any eligible list resulting from a competitive examination for the title, including the list on which Mitchell's name appeared.

Writ of Mandamus

Writ of Mandamus

2018 NY Slip Op 07694, Court of Appeals

In this action the Court of Appeals affirmed the Appellate Division's dismissing the Plaintiffs' petition seeking a writ of mandamus to compel the New York City Police Department and the New York City Department of Health and Mental Hygiene to enforce certain laws.

The court explained that a writ of mandamus "is an extraordinary remedy 'that is available only in limited circumstances,'" citing Matter of County of Chemung v Shah, 28 NY3d 244. Mandamus, said the Court of Appeals, is available as a remedy "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law."

Further, although mandamus to compel "is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion," as the court held in Matter of Gimprich v Board of Educ. of City of N.Y., 306 NY 401.

As to what constitutes a "discretionary acts" such acts involve the exercise of reasoned judgment which could typically produce different acceptable results in contrast to ministerial acts involving "direct adherence to a governing rule or standard with a compulsory result." Indeed, mandamus may only be used to compel a public officer to execute a legal duty; it may not "direct how [the officer] shall perform that duty," as was noted in People ex rel. Schau v McWilliams, 185 NY 92.

In this action the enforcement of the laws cited by the Plaintiffs would involve some exercise of discretion. Additionally, Plaintiffs did not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Thus, concluded the Court of Appeals, "mandamus is not the appropriate vehicle for the relief sought."

The decision is posted on the Internet at:

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

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