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June 30, 2010

State Comptroller DiNapoli reports that school aid payments have been made

State Comptroller DiNapoli reports that school aid payments are being processed
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reported that school aid to school districts and BOCES totaling nearly $1.6 billion, is being processed. These payments are typically made by June 1, but because of the State’s “cash crunch in March” the Governor delayed these payments until the end of June.

The Governor also delayed the March school aid payments until June 1, which totaled about $2.1 billion.

A list of the State Aid distributed to each BOCES and to each school district is posted on the Internet at: http://www.osc.state.ny.us/press/releases/june10/schoolaidpd.pdf

Appointment of an eligible from an expired eligible list is impossible as a matter of law

Appointment of an eligible from an expired eligible list is impossible as a matter of law
Matter of Farrison, 2010 NY Slip Op 51113(U), Decided on June 24, 2010, Supreme Court, New York County, Judge Hunter [Not selected for publication in the Official Reports]

John D. Farrison filed a petition pursuant to CPLR Article 78 seeking an appointment as a New York City Correction Officer. Farrison contended that the Department of Correction's [DOC] decision not to select him from the eligible list resulting from Correction Officer Examination 2004 for such an appointment to one of three available vacancies was arbitrary, capricious, and contrary to law.

Supreme Court dismissed Farrison’s petition, commenting that the redress he sought would require that he be appointed from the eligible list resulting from Correction Officer Examination No. 4002, a list that had expired prior to his initiation of his Article 78 action.

In view of this, Judge Hunter said Farrison claim that that DOC's decision not to appoint as a Correction Officer was arbitrary, capricious, and contrary to law, is without merit. The court explained that once a civil service eligible list expires, it cannot be revived and an individual whose name appears on an expired eligibility list cannot be appointed to a civil service position on that basis.

As the Court of Appeals said in Cash v Bates, 301 NY 258, appointment to a civil service title from an expired civil service eligible list a "legal impossibility."*

In addition, Judge Hunter cited Hancock v. City of New York, 272 AD2d 80, in which the Appellate Division, held that a "plaintiff, whose name appears on a now-expired civil service list, is no longer entitled to be hired as a correction officer, notwithstanding that he was improperly declared to have been ineligible for the job."

* To provide for a remedy for the "impossiblitity" of appointing an individual from an expired eligible list, Section 243.7 of the Military Law authorizes the establishment of "special eligible lists" to accommodate situations involving an eligible list that expired while a candidate is on ordered military service. It provides that "Any person whose name is on any eligible list ... while in military duty ... is reached for certification during his [or her] military duty ... [his or her name] shall be placed on a special eligible list in the order of his [or her] original standing ... [and such special eligible] list shall be certified before certification shall be made from a subsequent open competitive or promotion eligible list for the same position .... Such names shall remain on such special eligible list for a period of two years after the termination of such military duty...."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51113.htm

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?
Roberson v Ward, App. Div., First Dept., 278 A.D.2d 180; motion for leave to appeal denied, 96 N.Y.2d 717

When must a public officer,* arrested and convicted of a crime, be given a disciplinary hearing in contrast to being summarily terminated? As the Roberson decision demonstrates, it depends on the nature of the offense.

In Bratton v Foley, 92 NY2d 981, the Court of Appeals held that a police officer is removed from his or her position by operation of law if he or she is convicted of a particular crime falling in the "oath of office" or “the conviction of a felony “ category pursuant to Public Officers Law Section 30.1(e).**

In contrast, said the high court, for other convictions -- i.e., those not constituting a violation of the police officer's oath of office, or in cases where Section 30.1(e) is not cited as authority for the termination, "a public hearing is required...." If the police officer is not given such a hearing, he or she may demand one.

The lesson in the Roberson decision is that in the latter type of situation, the police officer must make a timely demand for the hearing.

In 1989 Cedric T. Roberson, was “automatically terminated” from his position as a New York City police officer upon his misdemeanor conviction of menacing in the third degree. Apparently the department relied on an administrative rule as authority for his "automatic termination" rather than Section 30.1(e) of the Public Officers Law.

Some ten years later he asked the court to annul his dismissal, claiming that he was entitled to a "hearing" before he could be terminated from his position.In response to Roberson's claim that he was entitled to a pretermination hearing as announced in Bratton, the court said that "the proceeding is barred by laches...."***

According to the ruling, "[i]t is no excuse for any subsequent delay in challenging his termination that he believed, as a result of advice from his attorney, who opined that any proceeding he might bring to challenge his termination would be futile unless his menacing conviction was overturned on appeal, which did not occur."

What is a "reasonable delay?" It appears that to be "reasonable," it must be a delay of less than two years. According to the decision, Robinson also attempted to obtain a copy of the "order of termination" pursuant to the Freedom of Information Law subsequent to his termination from the police force. However, said the court, this two-year delay "was also unreasonable."


* Although not all public employees are public officers, all public officers are public employees. A police officer is a public officer.

** However, the public officer is entitled to a so-called Bratton Hearing under certain circumstances. A Bratton Hearing flows from Public Officers Law §30.1(e), which provides that a public officer removed from office following his or her conviction of a felony, or a crime involving a violation of his or her oath of office, other than an elected officer, “may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.”

*** A party is guilty of laches if he or she unreasonably delays taking action to enforce his or her legal right[s].

Conducting an administrative hearing

Conducting an administrative hearing
Flood v NYSERS, App. Div., First Dept., 279 A.D.2d 304

Clearly an individual may not be found guilty of disciplinary charges not alleged in the notice of discipline served on the employee. Similarly, a hearing officer in an administrative hearing may not rely on evidence in the record in making his or her determination if the other party was not permitted to challenge or rebut such evidence.

Theresa Flood, a teacher's assistant, was injured aboard a bus during a field trip in November 1990. The New York State Employee's Retirement System denied her application for accidental disability retirement benefits on the grounds that she had not been "incapacitated ... as the natural and proximate result of an accident sustained in ... service". Flood appealed and the issues were framed by the initial Hearing Officer designated to consider the matter as follows:

1. Was there an accident?

2. Is the applicant permanentlyincapacitated? and

3. If so, is the incapacity a proximate result ofthe accident?

The appeal was eventually considered by a different Hearing Officer. Flood's attorney framed the issue before the new hearing officer as simply whether Flood's disability was "the natural and proximate result of an accident sustained in . . . service".

The new hearing officer agreed, cutting off any questioning on "incapacity" on the grounds that there was no "notice to the applicant on that point." He said "causation" was the sole issue to be resolved.

At the conclusion of the hearing the second hearing officer, after acknowledging that the hearings had been limited to the issue of causation, said that "all three questions (accident, incapacity and causation) were once again at issue." His decision, based on the Retirement System's expert's testimony: Flood had failed to establish a "permanent incapacity." That being the case, he denied her appeal without considering the issue of proximate cause.

The Appellate Division vacated the hearing officer's determination, pointing out that Flood "never had an opportunity to pursue or challenge [NYSERS's] testimonial evidence because the issue at the hearing, as framed in the notice, was limited to the question of causation."

The Appellate Division said that "[i]f the issues are to be expanded to cover accident and incapacity as well, then the interests of fairness dictate that [Flood] should have an opportunity to cross-examine the witness and present her own evidence in that respect."

The matter was returned to the Retirement System for a new hearing.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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