The anatomy of a challenge to a civil service commission's action rescinding an employee's appointment based on a criminal conviction

In consideration of the employee's [Plaintiff's] criminal history, the County Civil Service Commission [Commission] revoked Plaintiff's eligibility, certification and appointment to his Title A position, resulting in the termination of Plaintiff from service. The Commission also disqualified and removed the Plaintiff's name from an eligible list for appointment to a different title, Title B. Plaintiff initiated an Article 78 action challenging the Commission's decisions.

The record indicates that Plaintiff, in connection with his application for Title A, disclosed certain criminal history to the Commission. The Commission later sent letters to Plaintiff seeking additional documents and information concerning his criminal history. Although Plaintiff did not provide the documents sought by the Commission,* as the result of an administrative error, Plaintiff was certified eligible and, subsequently, appointed to the Title A position.

Subsequently, the County facility where Plaintiff worked was to be privatized. In accordance with an agreement enabling employees who did not want to work for the privatized company to be transferred to other job titles or work locations, Plaintiff applied for the Title B position and in connection with his application for the Title B position Plaintiff disclosed prior criminal convictions that had not been disclosed when he applied for the Title A position.

Ultimately the Commission notified Plaintiff that it was revoking his eligibility certification and appointment, terminating his employment in Title A and disqualifying him from the eligible list for the Title B position. The reasons advanced by the Commission for its actions with respect to the Title B position were Plaintiff's "disrespect for the process of law and order as evidenced by your record of convictions and failure to cooperate with your investigation." Plaintiff appealed the Commission's decision, submitting letters attesting to his good character and good work performance, as well as educational and training certificates he had earned. The Commission then advised Plaintiff that "it had determined that the 'original notification of disqualification stands,' and that [Plaintiff] will be terminated from his [Title A] position and removed from [Title B eligible list].

Plaintiff thereupon commenced his CPLR Article 78 proceeding challenging the Commission's  determination. Supreme Court, granted so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for the Title B position. The Commission appealed the Supreme Court's determination but the Appellate Division sustained the lower court's ruling.

The Appellate Division addressed a number of elements crucial to its consideration of the Commission's appeal.

Procedure: Judicial review of an administrative determination made without a formal hearing is limited to whether the determination was arbitrary or capricious or without a rational basis in the administrative record, and once it has been determined that an agency's conclusion has a sound basis in reason, the judicial function is at an end.**

Controlling statutory law: Civil Service Law §50[4] provides that the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, "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 [or her] application, examination or appointment . . . 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."

In this instance the Commission's determination to revoke the Plaintiff's eligibility certification and appointment and terminate his employment in Title A found arbitrary, capricious, and without a rational basis in the administrative record as Plaintiff was appointed to this position in 2011. Accordingly,, the Commission was precluded from revoking his certification and terminating his appointment from his Title A position in 2016 except for fraud. The Commission, however, did not alleged it bases its determination on the ground of fraud.***

Considering the Commission's determination to disqualify the Plaintiff from the eligible list for the Title B position, the Appellate Division concluded that its ruling was arbitrary, capricious, and without a rational basis in the administrative record as it was conceded that Plaintiff disclosed his prior convictions when seeking employment in a Title B position. Further, opined the court, "the record provided no sound basis to conclude that the Plaintiff failed in 2016 to cooperate with the investigation or to disclose material facts."

Addressing Plaintiff's criminal convictions, the Appellate Division cited Article 23-A of the Correction Law, explaining that this provision "protects persons who seek employment, after having been convicted of one or more criminal offenses, from unfair discrimination" and prohibits both public sector and private sector employer to deny a license or employment application by reason of the individual's having been "previously convicted of one or more criminal offenses" absent one of two exceptions permitted set out Correction Law §752 in applies.**** These exceptions are:

[a] There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

[b] The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public"

The Appellate Division said that there nothing in the record indicating that the Commission determined that an exception to Correction Law §752 was applicable or considered the factors to be applied in making that determination.

Thus, said the Appellate Division, it agreed with the Supreme Court's determination granting so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for appointment to the Title B  position.

* Plaintiff later contended that during the investigation into his criminal background he disclosed certain criminal convictions, but was not asked about certain other out-of-state convictions, explaining that he was under the impression that the additional documents the Commission sought pertained to an investigation for a different position that he had applied for, but in which he was no longer interested.

** Where an administrative adjudication made after a formal hearing, Supreme Court would transfer an Article 78 petition seeking judicial to the Appellate Division.

*** Citing Giangiacomo v Village of Liberty, 50 AD2d at 666, the Appellate Division observed that "under the circumstances presented, the record did not reveal the existence of fraud of a substantial nature" in connection with Plaintiff's application for examination and appointment to Title A.

**** Correction Law §753 sets out eight factors an employer is to consider when evaluating an applicant with a criminal record for employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03785.htm

Employer's actual investigation of the incident on the date of the event reported to it by the injured party obviates its claim that it lacked timely notice of the event

Plaintiff, a medical technician employed by the New York City Health and Hospitals Corporation [HHC] filed motion seeking approval to file a "late notice of claim" alleging that she was assaulted by an inmate in the custody of Department of Correction [DOC] while that inmate was being treated at Bellevue Hospital. In support of her application, filed about seven months after the 90-day statutory period elapsed, Plaintiff submitted an affidavit averring that on the very same day of the alleged assault, she had two conversations with a DOC employee, a Corrections Captain [Captain], and told the Captain that she intend to pursue legal action." DOC did not submit any evidence to Supreme Court to dispute these factual allegations.

Supreme Court rejected Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing," presumably because agreed with DOC's argument that it lacked notice because Plaintiff never specified that she had told the Captain the manner in which DOC was negligent.

In considering whether to grant leave to file a late notice of claim, explained the Appellate Division, courts consider whether the public entity involved "acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter," and "all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public [entity] in maintaining its defense on the merits," the length of the delay, and whether there was a reasonable excuse for the delay.*

Although the Appellate Division held that while Supreme Court correctly found that Plaintiff failed to establish that DOC had actual knowledge of the essential facts constituting the claim based on the documentation that Plaintiff submitted to the Workers' Compensation Board, it erred in rejecting Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing."

To the extent that Plaintiff did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, the Appellate Division opined that "municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort," citing Goodwin v New York City Hous. Auth., 42 AD3d 63. Here, said the court, negligence is the only theory of liability that could be implied by Plaintiff's conversations with Captain and, in any event, Captain could have determined who was in the room during the course of his investigation with "a modicum of effort." In the words of the Appellate Division, "[t]o hold otherwise would turn the statute into a sword, contrary to its remedial purpose."

The Appellate Division also found that Supreme Court erred by applying the incorrect legal standard when evaluating the issue of substantial prejudice. Supreme Court neglected to consider the decision of the Court of Appeals in Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455.

Applying the Newcomb standard, "as we must", the Appellate Division said it was compelled to find that DOC was not substantially prejudiced by the delay.**

Noting that the burden initially rests on the Plaintiff to make a showing that the late notice will not substantially prejudice the respondent and that showing "need not be extensive," the Appellate Division ruled that "Plaintiff easily met her initial burden of providing 'some evidence or plausible argument' regarding the lack of substantial prejudice by pointing to the investigation" by Captain. This shifted the burden of going forward to DOC, which failed to rebut Plaintiff's showing with the particularized evidence  as required by Newcomb nor provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time.

The bottom line, the Appellate Division said it must bear in mind that "the purpose of the statute is to give the municipality the opportunity to investigate the claim" and here the record indicated that DOC's Captain  "actually investigated [Plaintiff's] claim on the very same day that it arose, thereby fulfilling the statute's purpose."***

* See General Municipal Law §50-e[5].

** The Appellate Division pointed out that Plaintiff failed to demonstrate a reasonable excuse for service of her late notice of claim but concluded that the "lack of excuse" is not fatal here.

*** The Appellate Division also noted that it had simultaneously recalled and vacated its Decision and Order previously entered [see 168 AD3d 481] regarding this matter.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03921.htm

Application for a professional license denied based on a finding that the applicant lacked "good moral character"

New York State's Education Law §8405[3][f] requires that an applicant for a New York State psychoanalyst license must "[b]e of good moral character."

In this CPLR Article 78 action, an applicant [Petitioner] for "licensure as a psychoanalyst" challenged the rejection of his application based on the New York State Department of Education's [SDE] determination that Petitioner "lacked good moral character." Supreme Court transferred the Article 78 action to the Appellate Division.*

The Appellate Division's decision indicates that Petitioner had been licensed as a social worker by SDE in 1984 and subsequently was a licensed clinical social worker [LCSW] in several other states. At the time Petitioner applied for a New York State psychoanalyst license he was living in another state and held a LCSW a license issued by the state in which he then resided.

The reasons advanced by SDE in support of its decision to deny Petitioner "licensure as a psychoanalyst" included the following:

[a]  In 2003 Petitioner pleaded guilty in Rockland County Court to grand larceny in the third degree in full satisfaction of multiple charges pertaining to false billings submitted to a private insurance company during the period June 1999 to August 2001 and his New York license was suspended for one year;

[b] In 2005 Petitioner pleaded guilty, again in Rockland County Court, to two counts of grand larceny in the second degree, admitting that he filed false claims with the state and federal Medicaid programs and was allowed to surrender his New York license;** and

[c] Following testimony from Petitioner and several witnesses on his behalf, the SDE Hearing Panel determined that Petitioner did not meet the moral character requirement and that the application should be denied, which decision was sustained by SDE's Committee on the Professions.

 The Appellate Division observed that:

[1] "[W]hether an applicant seeking professional licensure has demonstrated "good moral character" is to be determined by the appropriate body and if "made after an evidentiary hearing", the determination will be upheld if supported by substantial evidence;"*** and

[2]  §752 of the Correction Law provides that a license application shall not "be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of 'good moral character' when such finding is based upon [the prior convictions], unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license ... sought ...; or (2) the issuance ... of the license ... would involve an unreasonable ... to the safety or welfare of specific individuals or the general public."

Noting that the parties agreed that the above cited standard applied here, at issue was SDE's determination that both exceptions have been established, i.e., that [1] there is a direct relationship between Petitioner's convictions and the work of a psychoanalyst and [2] that the issuance of a license to Petitioner would present an unreasonable risk to the safety and welfare of the public. 

Although Petitioner contended that SDE failed to consider the specific factors outlined in Correction Law §753 in making this determination, the Appellate Division said that its review of the record "shows otherwise" in that SDE "reasonably determined that Petitioner's improper billing practices as an LCSW were directly relevant to the same responsibilities that he would have to his clients and the involved insurers as a licensed psychoanalyst."

The decision also notes that Petitioner receive a certificate of relief from disabilities for his first conviction as provided by Correction Law §753[2]) but Petitioner's other convictions came two years later.

In consideration of the records before it, the Appellate Division found that the determination denying Petitioner's license application was supported by substantial evidence.

* CPLR §7804[g], in relevant part, provides that Supreme Court shall transfer an Article 78 action to the Appellate Division in the event an administrative determination required by law was after a hearing at which evidence was taken.

.** The decision notes that Petitioner retained his LCSW license issued by another state "under supervision".  

*** Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03865.htm

Declining a particular fringe benefit does not convert the value of the employer's contribution for such benefit into additional salary or other compensation

The appointing authority [Town] employed two town justices. Both justices have the same job functions and receive an identical annual salary. The Town also offers both town justices the opportunity to participate in its employee health insurance plan. While the Justice A elected to participate in this plan, Justice B elected not to do so and, in lieu of receiving health benefits, made several unsuccessful requests seeking additional compensation equal to the cost of the "employer contribution" to the Town to provide Justice A with health insurance coverage.

Ultimately Justice B sent a letter to the Town's supervisor formally requesting this additional compensation, contending that health insurance coverage was a component of a town justice's salary and that, because her fellow town justice was receiving this benefit and she was not, she was being compensated less than the other justice in violation of Town Law §27.1. After Justice B's request was denied by the Town, she initiated an Article 78 action seeking, among other things, a declaration that the Town's denial of her request for additional compensation violated Town Law §27.1. The Town answered the petition and, following oral argument, Supreme Court found Justice B's claim to be without merit and dismissed her petition and complaint. Justice B appealed the ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that Town Law §27.1  provides, in relevant part, that "[t]he town board of each town shall fix . . . the salaries of all officers and employees of said town" and that "the salaries of all town justices shall be equal," unless otherwise agreed upon by a majority vote of the town board."

Although §27 does not define the term "salary," the Appellate Division noted that in Bransten v State of New York, 30 NY3d 434 the Court of Appeals, considering the State Constitution's Judicial Compensation Clause, Article VI, §25[a], and held that the state's employer contributions toward a justice's health insurance coverage "is not part of [his or her] judicial salary" nor considered "a permanent remuneration for expenses necessarily incurred in fulfillment of judicial obligations."

Finding that both Town Justice A and Town Justice B have received identical salary and benefits, "including eligibility to participate in the Town's health insurance plan," the Appellate Division opined that the fact that Justice B had chosen to forgo participating in the Town's health insurance plan did not transform the Town's employer contribution towards the plan it made on behalf of Justice A, who did elect to participate in the Town's health insurance plan, into some form of salary differential forbidden under Town Law §27.1.

According, the Appellate Division said it agreed with Supreme Court that the Town's denial of Town Justice B's request for additional compensation did not violate Town Law §27.1.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03864.htm

Seeking a writ of mandamus to compel a public entity to perform a certain action

For many years, Binghamton City Court [City Court] used docket books maintained in hard copy used by the plaintiff to personally compile lists of adjudicated summary eviction proceedings. However, at some point, City Court discontinued their use of hard copy docket books and began maintaining court records electronically. Beginning in 2015, Plaintiffs made several written requests to City Court for all summary eviction proceedings that had been adjudicated since January 1, 2014.

Plaintiff was advised that City Court did not maintain its records in the specific manner that he was requesting and that he could access the electronically-stored court records by providing a case name or index number. In addition, the Town of Union Court [Town Court] similarly notified Plaintiff that it did not maintain a running list of summary eviction proceedings in a form that he had requested.

Ultimately Plaintiff commenced a CPLR Article 78 proceeding in the nature of mandamus seeking to compel City Court and Town Court to, among other things, "maintain all court records in a written form . . . [l]ike the old docket books" and, since the records were maintained electronically, to provide the requested information "on a disk in a form that could be easily used by the public."

City Court answered Plaintiff's petition and alleged that Plaintiff had failed to state a claim. Town Court submitted an affidavit in opposition to Plaintiff's petition, requesting that the petition be dismissed, indicating that, although under no obligation to do so, it had employed an outside information technology company to create the list sought by Plaintiff. Supreme Court ultimately dismissed the petition and Plaintiff appealed.

The Appellate Division, citing Matter of County of Chemung v Shah, 28 NY3d 244, affirm the lower court's ruling, explaining that a "writ of mandamus"* is an extraordinary remedy that lies only to compel the performance of "an administrative act positively required to be done by a provision of law." In the words of the Appellate Division, "[s]uch a writ will not be awarded to compel the performance of an act involving the exercise of judgment or discretion or to direct the manner in which a public official carries out his or her legal duty to complete a ministerial act."

Finding that the records demonstrated that both City Court and Town Court were satisfying their duties under Judiciary Law §§255 and 255-b by maintaining an electronic docketing systems that was available for search and examination by members of the public with the assistance of court staff, the Appellate Division ruled that neither City Court nor Town Court were statutorily required to maintain their respective court dockets "in the particular manner requested by Plaintiff or create the list that Plaintiff desires."

Finding that City Court and Town Court cannot be compelled to perform their ministerial duties in the specific manner sought by Plaintiff, the Appellate Division ruled that Supreme Court had properly dismissed the Plaintiff's Article 78 petition.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_03863.htm