To prevail in an action challenging an unsatisfactory performance rating the individual must show that the rating was arbitrary and capricious or made in bad faith

In this CPLR Article 78 action the Petitioner challenged the "Unsatisfactory" annual performance rating she had received for the 2013-2014 academic year and [2] the calculation of her pension. Supreme Court dismissed both of these claims advanced by the Petitioner and, in addition, rejected her contention that she had suffered a "discontinuance of employment." The Appellate Division unanimously affirmed the Supreme Court's rulings.

Citing Murname v Department of Education of the City of New York, 82 AD3d 576, the Appellate Division explained that Petitioner failed to show that the U-rating she had been given for the academic year by the New York City Board of Education [Respondent] was arbitrary and capricious or made in bad faith. Rather, said the court, Respondent's determination to uphold the U-rating has a rational basis in the record, which shows repeated instances of pedagogical deficiencies during the 2013-2014 school year, as well as a failure to improve.

With respect to Petitioner's appeal concerning the calculation of her pension , the court's decision indicates  that there were two obstacles to its consideration of her complaint: [1] the Respondent was not the proper party against which to bring her claims and [2] "[t]hese claims could not in any event be entertained, because [Petitioner] failed to exhaust her administrative remedies."

Addressing Petitioner's contention that she had been "discontinued from service", the court found that "there was no discontinuance of employment." Rather, said the Appellate Division, Petitioner had voluntarily resigned from her position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04887.htm

Proceeding with a disciplinary action notwithstanding the appointing authority's receipt of the employee's written resignation from the position

The Petitioner in this Article 78 action sought to have Supreme Court annul a determination of City of New York Civil Service Commission [Commission] affirming the decision of the New York City Administration for Children's Services [ACS] terminating Petitioner's employment for misconduct and incompetence. In addition, Petitioner attempted to have the court to annul the Commission's affirming a ruling by the New York City Department of Citywide Administrative Services [Citywide] disqualifying Petitioner from employment with the New York City Taxi and Limousine Commission based on ACS's findings. Supreme Court dismissed the proceeding, which resolution of the matter the Appellate unanimously affirmed.

The Appellate Division observed that Petitioner had submitted both a "conditional resignation" and "a handwritten resignation letter" while disciplinary charges were pending against him. ACS, however, elected to disregard these resignations and continue to prosecute the charges against Petitioner.  Citing 4 NYCRR 5.3[b], the court found that the appointing authority could, and did, ignore Petitioner's consistent with the provisions of the rule which, in pertinent party, provides "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his* termination shall be recorded as a dismissal rather than as a resignation."

Further, said the court, "Petitioner failed to establish that respondents acted in excess of their jurisdiction, citing Civil Service Law §76[1], [3]. The court explained that Petitioner, a probationary employee, could be dismissed "for almost any reason, or no reason at all," failed to allege facts that would establish that he was dismissed in bad faith or for an improper or impermissible reason.

* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04880.htm

The statute of limitations for filing an Article 78 petition challenging an regulation adopted by a government entity starts to run on the effective date of the regulation

General Municipal Law §209-q(1)(a) requires that individuals satisfactorily complete an approved municipal police basic training program prior to appointment as a police officer on a permanent basis. A certificate of completion issued upon completion of an approved training course remains valid, as relevant in this appeal, during the holder's continuous service as a police officer and during certain specified periods of "interruption" from service (see General Municipal Law §209-q[1][b]).* The State's Division of Criminal Justice Services [DCJS] is required by law to maintain a registry of all full-time and part-time police officers in the State and all agencies employing police officers are required to immediately report to DCJS when any officer it has employed ceases to so serve.

Executive Law §837[13] authorizes DCJS to adopt such regulations "as may be necessary or convenient to the performance of its duties." DCJS had adopted regulations requiring an agency employing police officers immediately notify DCJS when a police officer it had employed ceased to serve as a police officer and to indicate the reason for his or her ceasing to serve as a police officer, including reporting his or her "removal for cause".** 

Removal for cause included, as relevant in this action, resignation while a disciplinary proceeding was pending against the police officer pursuant to Civil Service Law §75 or pursuant to another statute or a contract disciplinary procedure negotiated pursuant to the Taylor Law.***

Among the issues addressed by the Appellate Division in this action was the effective date of a regulation adopted by DCJS for the purposes of determining the statute of limitations for timely filing a CPLR Article 78 petition seeking to annul a determination made by DCJS pursuant to the challenged regulation.

In April 2018, two former police officer [Plaintiffs] initiated proceedings and actions for declaratory judgments seeking to annul DCJS's determinations to invalidate their respective police officer basic training certificates. Supreme Court "converted these proceeding/action to a CPLR Article 78 proceeding upon consent of the parties" and then dismissed the Article 78 action as untimely. Plaintiffs appealed.

The Appellate Division noted that although the parties concede that this proceeding was governed by the four-month statute of limitations set forth in CPLR §217(1), they disagree as to when their respective causes of action arose and, in the words of the court, "their claims for relief are ultimately grounded on challenges to the validity of the regulations that were promulgated by DCJS in 2016 and 2017" in consideration of their status as police officers.

Citing Thrun v Cuomo, 112 AD3d 1038, the Appellate Division opined that as the challenged regulations "were quasi-legislative acts ... challenges to the validity of regulations accrued when the regulations become effective." Accordingly, explained the court, "inasmuch as the regulations became effective more than four months before this proceeding was commenced, Supreme Court properly found that [Plaintiffs' claims are time-barred."

Addressing an argument raised by one of the Plaintiffs whereby the Plaintiff asserted that he had submitted "his irrevocable resignation letter" on September 19, 2016 and that it had expressly provided that his resignation would be effective on October 31, 2016, five days after the regulations were adopted, the Appellate Division observed that the resignation was submitted in settlement of disciplinary charges that could have resulted in Plaintiff's removal.

Thus, said the court, Plaintiff's "arguments that he resigned before the regulations were enacted or, alternatively, that no disciplinary charges were pending on the effective date of his resignation are precluded by his acceptance of the benefits of the settlement, namely, being permitted to resolve the pending disciplinary charges by resigning and his further receipt of employment benefits from September 19, 2016 through the effective resignation date of October 31, 2016." 

* Interruption means separation from employment as a police officer "by reason of such officer's leave of absence, resignation or removal, other than removal for cause" (see General Municipal Law §209-q[1][c]).

** See 9 NYCRR 6056.2(g), employees removed for incompetence or misconduct.

*** 4 NYCRR 5.3(b) provides in pertinent part, "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Also, where necessary and appropriate, such disciplinary action may be conducted in absentia [see Mari v Safir, 291 AD2d 298].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04524.htm

An individual receiving a pension benefit from a New York State public retirement system reemployed by New York State or political subdivision of the State must report such her reemployment and his or her earning derived from such reemployment to the retirement system

The individual [Respondent] in this action had served with the City Fire Department in various capacities for some twenty years. In May 2000 Respondent retired from the Department and after obtained a license to practice law in New York State, was reemployed by City Fire Department.

New York's Retirement and Social Security Law provides that retirees within the New York State and Local Police and Fire Retirement System [NYSLPFR]who return to employment with the State of New York or a political subdivision of the State can earn up to $30,000 per year before their retirement benefits are suspended, unless a waiver is obtained. Respondent neither reported his return to public service nor the earnings he received in excess of $30,000 to NYSLPFR. Further, Respondent did not obtain a waiver of the earnings limit. This resulted in Respondent receiving approximately $95,106 in pension benefits to which he was not entitled via wire transfer from Florida to his bank account in New York.

Respondent admitted that he "returned to public service after approximately ten years of being in retirement" but when he took the job, he did not obtain the required waiver. He further stated "[w]ell, the required waiver that would allow me to continue to receive my entire pension, and I did understand that I needed that waiver. And I just, I didn't do it." He then stated that in 2014 he "contacted the retirement system, notified them that I was receiving the benefits and to make those arrangements necessary to suspend my retirement and to start paying back the benefits I had received."

Respondent was convicted of wire fraud in violation of 18 USC §1343, which is essentially similar to the New York felony of grand larceny in the second degree, in violation of Penal Law §155.40, a Class C felony. By virtue of his felony conviction, Respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law §90(4)(a) and, among other penalties imposed, was directed to pay restitution to the NYSLPFR in the amount of $95,106.15, a fine of $50,000, and an assessment fee of $100.

With respect to Respondent's admission to the New York Bar, New York State's Judiciary Law, in pertinent part, provides for automatic disbarment in the event an attorney is convicted of a felony. Under this section, an offense committed in any other State, district or territory of the United States where it is classified as a felony is determined to be a felony when it would constitute a felony in this state. (see Judiciary Law, §90, subdivision 4, paragraph  e.) For purposes of this determination, the Court of Appeals has ruled that a felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail, but it must have essential similarity.

In response to the Grievance Committee for the Ninth Judicial District's motion to strike Respondent's name from the roll of attorneys and counselor-at-law, the Appellate Division concluded that Respondent's conviction of wire fraud in violation of 18 USC §1343 is essentially similar to the New York felony of grand larceny in the second degree, in violation of Penal Law §155.40, a Class C felony and granted the Committee's motion. The court noted that "[b]y virtue of his felony conviction, [Respondent] was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law §90(4)(a)."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04704.htm

Expulsion from membership of an organization created by the New York State Legislature

Following a member [Petitioner] of a veteran's organization [Organization] created by the New York State Legislature in 1868 expulsion from the Organization.  he commenced a CPLR Article 78 proceeding seeking reinstatement. Supreme Court granted the petition to the extent of annulling Petitioner's expulsion and ordering the Organization to reinstate him as a member. Organization reinstated Petitioner's membership but then file new charges against him, which again resulted in his expulsion from membership in the Organization.

Petitioner, contending that by expelling him a second time, the Organization is in contempt of the Supreme Court's judgment asked the Appellate Division to find the Organization in civil contempt of the Supreme Court's directive.

Citing Garcia v Great Atlantic and Pacific Tea Co., 231 AD2d 401, the Appellate Division rejected Petitioner's claim. The court explained that in order to find a party in civil contempt, it must be determined that:

 [1] a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;

 [2] that the party charged with contempt had notice of the order and disobeyed it; and

[3] the failure to comply with the order prejudiced the rights of a party to the litigation.

Here, however, the Appellate Division determined that although the Supreme Court's judgment mandated Petitioner's reinstatement, it did not address any future charges and nor did it hold that Petitioner could never be discharged from the Organization. In the words of the court, "[t]he sole mandate of the judgment, which was based exclusively on the first charges brought against [Petitioner], was for [the Organization] to reinstate Petitioner. As the Organization admittedly complied with that mandate, there was no violation such that a finding of contempt would be appropriate.

The Appellate Division also noted Petitioner's argument that he is entitled to [1] a determination as to his allegations of fraudulent conduct by other members of the Organization and [2] whether Organization followed proper procedure in expelling him a second time.

However, ruled the Appellate Division, as Petitioner's initial petition did not seek such determinations in his initial petition and only sought a determination involving the first set of charges brought against him by Organization, the Supreme Court's determination concerning that matter was fully disposed of by the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04101.htm