Employee terminated for omitting relevant information from his application for employment

Employee terminated for omitting relevant information from his application for employment
Russell v New York Citywide Admin. Servs., 55 AD3d 614

Stephen Russell sued the New York City Department of Citywide Administrative Services following its terminating his temporary employment as a bridge and tunnel officer. An investigation by the Citywide Administrative Services revealed that Russell had failed to disclose pertinent information on his employment application. The information omitted: Russell’s “prior misdemeanor criminal conviction, prior revocations and suspensions of his driver's license, and a prior termination from employment by the New York City Transit Authority.”

The Appellate Division agreed with Supreme Court that Citywide Administrative Service’s decision to terminate Russell’s temporary employment was neither arbitrary nor capricious, had a rational basis, and was not made in bad faith.

Section 50.4 (f) and (g), respectively, permit the State Civil Service Department and municipal commissions to disqualify an individual “who has intentionally made a false statement of any material fact in his [or her] application; or (g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application … to be disqualified. 

The statute further provides that “No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore [sic] and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The full text of the decision is posted on the Internet at
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07670.htm

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee
Gomez v Kelly, 55 AD3d 305

New York City Police Commissioner Raymond W. Kelly found Manuel Gomez guilty of five charges of misconduct and as the penalty placed Gomez on a one-year disciplinary probation and imposed a forfeiture of 30 days of vacation credit.

The charges filed against Gomez: violation of his commanding officer's order to terminate his involvement with the District Attorney's office in a criminal investigation; failure to take possession of drugs during a police department integrity test; failure to voucher his helmet, mace and shield before leaving for active military duty; retrieved his service handgun before the official date of his discharge from active military duty; and failure to report a domestic incident to the department.

Gomez appealed and the Appellate Division, after sustaining the Commissioner’s determination finding Gomez guilty of the charges filed against him, ruled the penalty imposed by the Commissioner was “excessive in light of the mitigating circumstances, i.e., [Gomez's] several tours of active military duty, including a year in Afghanistan for which was decorated, and the substantial pay lost in connection with his military service,” citing Pell v Board of Education, 34 NY2d 222.

The court remanded the case to the Commissioner for the purpose of his setting a lesser penalty.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07181.htm

Substantial evidence supports disciplinary hearing officer’s findings

Substantial evidence supports disciplinary hearing officer’s findings

Mercado v Kelly, 54 AD3d 654

A police officer appealed his termination from his position as a New York City police officer after he was found guilty of certain charges following a disciplinary hearing.

The Appellate Division, in a unanimous decision, said that “Substantial evidence supports the findings, including that [the officer] possessed a stolen license plate and made false and misleading statements about whether he knew the plate was stolen.

Accordingly, the court dismissed the officer’s appeal as “There is no basis for disturbing the hearing officer's assessment of petitioner's credibility regarding the inconsistencies between his plea allocution in the criminal case against him and his statements to the Internal Affairs Bureau investigators.”

As to the penalty imposed by the Police Commissioner, dismissal, the Appellate Division said that “The penalty of dismissal does not shock our sense of fairness, particularly where the evidence gives rise to the inference that petitioner obtained the stolen license plate by virtue of his official position and intended to use the plate for fraudulent purposes, citing Kelly Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07175.htm

“Tebowing” and other activities by students leading to disciplinary suspensions

“Tebowing” and other activities by students leading to disciplinary suspensions

Source: On Board, a publication of the New York State School Boards Association

“Tebowing” that resulted in hallway congestion and other unusual reasons for initiating student disciplinary actions leading to suspensions are described in an article published in the July 2, 2012 edition of the New York State School Boards Association’s publication On Board.

Among other incidents leading to suspensions: Growing long hair for charity [in violation of the school’s dress code] and “Chivalry” [holding an exterior door open for an adult known to the student in violation of security procedures].

The article is posted on the Internet at:

http://www.nyssba.org/index.php?src=news&submenu=news_media&srctype=detail&category=On%20Board%20Online%20July%202%202012&refno=2213

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

Malverne Volunteer Fire Dept. v New York State Off. of Fire Prevention & Control, 2012 NY Slip Op 05174, Appellate Division, Second Department

The New York State Fallen Firefighters Memorial Appeals Committee denied a request to include former Malverne Volunteer Fire Department firefighter Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall. Malverne appealed, contending that the Committee’s decision was not made after a quasi-judicial hearing it claimed was required by the Committee’s procedures.

Although Supreme Court dismissed Malverne’s petition, the Appellate Division “reversed, on the law” and remanded the matter to Supreme Court “to direct the New York State Fallen Firefighters Memorial Appeals Committee to include Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall.”

The Appellate Division explained that in this instance it must consider whether the Committee’s determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The test applied in such cases: “did the action taken by the agency have a rational basis." Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that a court will overturn such action only "where it is taken without sound basis in reason' or regard to the facts'" or where it is "arbitrary and capricious."

In this instance, said the court, the determination of the Committee that the death of firefighter Brady was not a "line of duty death" within the selection criteria for inclusion on the New York State Fallen Firefighters Memorial Wall was arbitrary and capricious and did not have a rational basis in the record.

Indeed, said the court, “The record demonstrates that, under the applicable selection criteria, Paul Ryan Brady died while engaged in an action that was required, authorized or recognized by law, rule, regulation, [or] condition of employment.’"

Accordingly, the Appellate Division ruled that Supreme Court should have [1] granted Malverne’s petition, [2] annulled the Committee’s determination and [3] directed the appeals committee to include Brady's name on the New York State Fallen Firefighters' Memorial Wall

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05174.htm

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Canna v Town of Amherst, 55 AD3d 1269

Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R. was terminated from his employment following a hearing conducted pursuant to Civil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.

Canna appealed, contending, among other things, that the Section 75 hearing officer “was biased against him;” that the Town Board’s resolution to terminate his employment was not supported by the required number of valid votes; that the charges were barred by the 18-month statute of limitations set out in Section 75(4) of the Civil Service Law; and that the penalty imposed, dismissal, was “shocking to one’s sense of fairness.”

The Appellate Division rejected Canna’s claim the hearing officer was biased, holding that Canna failed to present "a factual demonstration to support the allegation of bias and proof that the outcome [of the hearing officers findings and recommendation] flowed from it."

As to the validity of the Board’s vote, the court rejected Canna’s claim that the Board’s vote was tainted by the statements by one Town Board member to the effect that it would be difficult for Canna to resume his position as superintendent of the Facility after all that had transpired. Further, said the Appellate Division, “The record establishes that he further stated that, although [that member of the Board] did not believe that [Canna] was ‘single handedly’ responsible for all of the problems at the Facility, he believed that the evidence establish that [Canna] was incompetent, and incompetence is a valid basis for termination.”

Addressing the other aspects of Canna’s appeal, the Appellate Division said that the disciplinary proceeding against Canna was not time-barred based on the 18-month limitations period set forth in Civil Service Law §75(4) because his “alleged incompetency was continuous” and that the penalty imposed upon him, dismissal, was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The full text of the decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07300.htm

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