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"(c) Repealed.*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"

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Appellate Division, Fourth Department

Supreme Court, Chautauqua County directed that Jakubowicz, an employee of the Village of Fredonia,  be "fully reinstated to his former employment with full back pay and benefits retroactive to the date of his termination." The Village appealed.*

The Appellate Division first addressed "Appeal No. 2" in which the Village contended that a commercial driver's license is a minimum qualification for Jakubowicz's position as a Mechanic II in the Village and that "his failure to maintain such minimum qualification required the termination of his employment."

The court rejected the Village's claim, noting that the Mechanic II position in the Village required  possession, "at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator's license appropriate for the type of vehicles which the employee may from time to time operate."

Explaining that due process and fundamental fairness require that a qualification or requirement for employment must be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee, the Appellate Division said that in this instance the  requirement of a commercial driver's license is not "expressly stated."

In addition, said the court, quoting Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110, while "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it", the Village in this instance offered Jakubowicz a hearing "to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment." However, there is no dispute that a hearing was never held.

Accordingly, the Appellate Division concluded that Supreme Court was correct in determining that Jakubowicz's termination was arbitrary and capricious.

* The Village submitted two appeals, denominated Appeal 1 and Appeal 2, but dismissed Appeal 1 as academic in view of its ruling with respect to Appeal 2.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02059.htm

Judicial review of an administrative determination made after an adversarial hearing is limited

Judicial review of an administrative determination made after an adversarial hearing is limited

Buccieri v County of Westchester, 2018 NY Slip Op 07305, Appellate Division, Second Department

A Westchester County employee [Petitioner] was served with disciplinary charges and specifications pursuant to §75 of the Civil Service. The appointing authority, the Commissioner of the Westchester County Department of Parks, Recreation and Conservation [Commissioner], suspended Petitioner without pay for 30 days while the §75 disciplinary action was pending.*

The §75 hearing officer found Petitioner guilty of a number of the specifications set out in the charges and recommended a penalty: a 30-day suspension without pay. The Commissioner adopted the findings of the hearing officer and imposed the penalty recommended, suspension with out pay for 30 days.**

Petitioner filed a CPLR Article 78 petition seeking judicial review of the Commissioner's determination, contending that the Commissioner was not a qualified decision maker.

Supreme Court agreed, finding that the Commissioner had actively participated in the underlying events leading up to the disciplinary proceeding. Thus, said the court, the Commissioner should have recused herself from reviewing the hearing officer's findings and recommendation and rendering a final determination.

Accordingly, Supreme Court remanded the matter the Commissioner to appoint a duly qualified, impartial decision maker to review the hearing officer's findings and recommendation and to render a new determination.

The Commissioner appointed a Westchester County Department of Human Resources Deputy Commissioner to review the hearing officer's findings and recommendation and to render a new final determination, and if Petitioner was found guilty of any of the charges and specification filed against Petitioner, the to be imposed.

The Deputy Commissioner adopted the findings and the penalty recommended by the §75 hearing officer, suspension of Petitioner's for 30 days without pay. Petitioner then commenced this proceeding pursuant to CPLR Article 78 seeking a judicial review the Deputy Commissioner's determination.

The Appellate Division set out the following guidelines followed by courts in reviewing a challenge to an administrative determination such as one made after a §75 disciplinary hearing:

1. Judicial] review of an administrative determination in an employee disciplinary case made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence.

2. It is the duty of the administrative tribunal, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject.

3. A court may set aside the penalty imposed by an appointing authority only if it found to be so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.

* An employee so suspended without pay pursuant to §75 must be respored to the payroll after 30 days pending a final disciplinary determination by the appointing authority.

** The time during which an officer or employee is suspended without pay may be considered as part of the penalty at the discretion of the appointing authority. If he or she is found not guilty of all charges and specifications, he or she shall be restored to his or her position with back pay for the period of his or her suspension without pay less the amount of any unemployment insurance benefits he or she may have received during such period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07305.htm

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Appellate Division, Fourth Department

Supreme Court, Chautauqua County directed that Jakubowicz, an employee of the Village of Fredonia,  be "fully reinstated to his former employment with full back pay and benefits retroactive to the date of his termination." The Village appealed.*

The Appellate Division first addressed "Appeal No. 2" in which the Village contended that a commercial driver's license is a minimum qualification for Jakubowicz's position as a Mechanic II in the Village and that "his failure to maintain such minimum qualification required the termination of his employment."

The court rejected the Village's claim, noting that the Mechanic II position in the Village required  possession, "at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator's license appropriate for the type of vehicles which the employee may from time to time operate."

Explaining that due process and fundamental fairness require that a qualification or requirement for employment must be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee, the Appellate Division said that in this instance the  requirement of a commercial driver's license is not "expressly stated."

In addition, said the court, quoting Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110, while "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it", the Village in this instance offered Jakubowicz a hearing "to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment." However, there is no dispute that a hearing was never held.

Accordingly, the Appellate Division concluded that Supreme Court was correct in determining that Jakubowicz's termination was arbitrary and capricious.

* The Village submitted two appeals, denominated Appeal 1 and Appeal 2, but dismissed Appeal 1 as academic in view of its ruling with respect to Appeal 2.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02059.htm

Unauthorized recording of a court proceeding

Unauthorized recording of a court proceeding

Matter of Attorney Grievance Committee M-3080, 2018 NY Slip Op 07278, Appellate Division, First Department

Attorney Grievance Committee M-3080 for the First Judicial Department instituted disciplinary against an attorney alleging the attorney had made an unauthorized recording of a court proceeding in violation of New York Rules of Professional Conduct, 22 NYCRR 1200.0 rule 8.4(d), Conduct Prejudicial to the Administration of Justice.

The Committee found the attorney guilty of professional misconduct and a Referee was appointed to conduct a sanction hearing. Ultimately the parties stipulated that the attorney had engaged in a pattern of misconduct that was prejudicial to the administration of justice.

Noting  that [1] the attorney had no disciplinary history nor had ever been sanctioned by any court for misconduct; [2] the misconduct arose in the course of a contentious domestic relations action in which the attorney appeared pro se; [3] the attorney at the time of the incident had limited experience in the practice of law; and [4] the attorney had acknowledged  the wrongfulness of making an unauthorized recording in light of Rule 8.4(d), the Appellate Division found that " public censure" was an appropriate penalty and granted the parties' motion for "discipline by consent."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07278.htm

Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits

Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits

Hughey v Metropolitan Transp. Auth., 2018 NY Slip Op 02129, Appellate Division, First Department

Plaintiff in this action retired from his position with the Long Island Rail Road, an MTA subsidiary, at age 63.49. Plaintiff, as a commuter rail employee, was also eligible to  receive Tier II pension benefits after the requisite years of service under the Railroad Retirement Act. In addition, MTA employees receive pension benefits from the MTA Pension Plan.

Article 3.07(a)(ii) of the MTA Pension Plan, provide for an "offset" that reduced the amount of benefits payable under the Plan by the benefits "which would be payable to the Member involved at age 62 under Tier II. "Plaintiff, however, was still in service at age 62 and did not retired from MTA at age 63.49. Accordingly, the amount of the offset was determined by the MTA's Board of Managers on the basis of Plaintiff's actual age at the effective date of his retirement, 63.49 years of age.

Plaintiff sought a review of the Board's determination basing his pension benefits on his actual age at retirement, 63.49 years rather than determining his pension benefits to be that which would have been payable had he actually retired at age 62, a difference of $160.83 per month.

The Board denied Plaintiff's appeal, which determination was affirmed by the Appellate Division. 

The court explained that "Article 6.02 of the Plan conferred on its Board of Managers" sole and absolute discretionary authority to interpret the Plan and decide any dispute and all matters arising in connection with the operation or administration of the Plan, as well as to decide questions, including legal and factual questions, relating to the calculation and payment of benefits under the Plan.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02129.htm

Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious

Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious

Hayes v Nigro, 2018 NY Slip Op 07124, Appellate Division, Second Department

New York City Firefighter Sean Hayes charged with violating New York City Fire Department [FDNY] rules and regulations barring the use of prohibited substances.

In lieu of going forward with a disciplinary proceeding, Hayes settled the matter by entering into a stipulation with the FDNY that [1] allowed him to vest his pension in lieu of facing the penalty of termination and [2] set out his admission to conduct reflecting discredit upon the FDNY arising out of his testing positive for methadone during a random drug test while he was working and violations of the oath of office.

Some three years later Hayes applied for reinstatement to his former position with FDNY. His application was rejected by the Commissioner in consideration of his disciplinary record and the untimeliness of the request. Hayes then initiated an Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement to his former position of firefighter.*

The Supreme Court denied the Article 78 petition and Hayes appealed the court's decision.

Sustaining the Supreme Court's decision, the Appellate Division explained that:

1. A request to the Commissioner for the reinstatement of a firefighter must be made within one year from the date of his or her separation from the FDNY and Hayes' request some three years after his resignation was untimely;

2. Reinstatement is not a right and the decision to reinstate a former employee is within the sole discretion of the Commissioner, and who is not required to state a reason for denying the reinstatement; and

3. The Commissioner's determination rejecting the request will be sustained  unless it is shown to be arbitrary or capricious or an abuse of discretion.

In this instance, said the court, Hayes did not seek to be reinstated as a FDNY firefighter until almost three years after he had left the FDNY after admittedly illegal and potentially dangerous conduct. Thus, said the Appellate Division,  agreeing with Supreme Court, "the determination of the Commissioner was not arbitrary, capricious, or an abuse of discretion."

Addressing Hayes' efforts with respect to "discovery," the Appellate Division said that such discovery was "not relevant to the Commissioner's individualized and discretionary assessment of [Hayes'] application" for reinstatement.

* Hayes also sought discovery of the FDNY's records of all applicants for reinstatement for the period from January 2014 to the date of the commencement of his Article 78 proceeding. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07124.htm