Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate

Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate
Matter of Brynien v New York State Dept. of Civ. Serv., 2010 NY Slip Op 09442, Decided on December 23, 2010, Appellate Division, Third Department

The New York State Department of Civil Service asked the State Civil Service Commission to jurisdictionally reclassify over 30 medical job titles from competitive class to the noncompetitive class.*

The New York State Public Employees Federation [PEF], which represented individuals employed, or to be employed, in such titles objected.

Following an “informal hearing,” the Commission approved the Department's request to reclassify as noncompetitive “29 enumerated clinical physician, medical specialist, psychiatrist, pathologist, dentist and veterinarian job titles, but denied reclassification for pharmacy-related titles.”

PEF filed a petition pursuant to Article 78 of the CPLR challenging the Commission’s determination. Supreme Court granted PEF’s petition and annulled the Commission’s determination with respect to the “29 enumerated titles” and the Civil Service Department appealed.

The Appellate Division, noting that “it is axiomatic that a job classification determination is subject to limited judicial review and will not be disturbed absent a showing that it was wholly arbitrary or without a rational basis” and further, “if the classification determination has a rational basis in the record, it will be upheld even if there exists legitimate grounds for a difference of opinion.”

In this instance the Appellate Division concurred with Supreme Court’s determination and dismissed the Department’s appeal.

Starting with the basic proposition that New York State’s Constitution, Article V, §6 mandates that appointments and promotions to civil service positions be made according to merit and fitness to be determined, "as far as practicable," by competitive examination, the court addressed each of the Department’s arguments as set out below.

1.The Department argued that because the job titles at issue already require a license, credential and/or board certification, competitive examination for these positions is "unnecessary, redundant and adds no value to the assessment of candidates' merit and fitness."

The court said that the fact that a competitive examination is "redundant" or "unnecessary" has no bearing on whether such an examination is impracticable.

2. The Department argued that competitive examination "adds little if any value" to the assessment of a candidate's merit and fitness because the license, credential and/or board certification required for the job titles already provides an objective and verifiable measure of a candidate's qualifications for the position.

The Appellate Division rejected this argument, stressing that Article V, §6 mandates that appointments be made according to fitness and merit and although a licensing accreditation process measures whether an applicant is fit to practice in that discipline according to the minimum standards established by the regulating authority it found no factual or rational basis for the conclusion that competitive testing is impracticable because the possession of a credential, license and/or board certification is an adequate substitute for measuring a candidate's fitness and merit.**

3. The Department claim that a competitive examination was impracticable was based on its assertion that candidates who rank highest on the examination — the candidates with the most training and experience — are not necessarily the best qualified for the position.

Noting that “the Department has not submitted any facts or empirical data to support its claim in this regard, other than its conclusory assertion that ‘[e]xperience has shown’ that ranking candidates based upon years of experience does not ensure that candidates with the most experience are the most qualified for the job” the Appellate Division said that “the classification standards issued by the Department for nearly all of the job titles at issue clearly establish that work experience is the primary and distinguishing factor in evaluating a candidate's fitness and merit.” Further, said the court, “[t]o the extent that the Department suggests that a candidate's on-the-job performance, coupled with a noncompetitive examination, would provide a more effective indicator of merit and fitness, we need only note that this is not a valid basis for dispensing with competitive examination,” citing Matter of Wood v Irving, 85 NY2d at 249.

4. The Department claimed that the use of competitive examination causes delay in the hiring process and inhibits the ability to recruit qualified employees.

Such an argument, said the court, is entirely irrelevant to practicability — that is, the ability to objectively and fairly assess candidates' merit and fitness by way of competitive examination.

5. The Department claimed that the competitive examinations for the subject job titles do not rank candidates based on experience and training that is relevant to the specific type of work that the particular position requires.

The Appellate Division rejected this claim as well, commenting that “this could easily be remedied by a mere specification of the particular training needed for any given position.” In addition, the court pointed out that “under the so-called ‘rule of three,’ the appointing authority is never required to appoint or promote the candidate with the highest score.” Rather the appointing authority is given flexibility and may choose among other reachable candidates if it finds them to be more qualified for a particular position.

* Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law].

** The Appellate Division said that the Department's claim of irrelevancy is belied by its own job descriptions for essentially all of the positions, which not only indicate that possession of the required license is only a minimum qualification for the position. Further, said the court, another “distinguishing factor” with respect to a candidate's qualifications is the number of years of work experience he or she claimed.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09442.htm

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Purvis v. Oest, ___F.3d____(7th Cir. Aug. 2, 2010), is an interesting case.

The Seventh Circuit held that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights.

The court also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable cause to make the arrest.

The teacher had resigned from her employment in exchange for a cash settlement. In finding that the individual defendants were entitled to qualified immunity, the court applied the two-step immunity test:

(1) whether the plaintiff showed a that the defendant had violated a constitutional right; and

(2) whether that right was clearly established at the time the violation occurred.

Mitchell H. Rubinstein

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege
Liere v Scully, 2010 NY Slip Op 09227, Decided on December 14, 2010, Appellate Division, Second Department

Peter Scully, Regional Director of the State Department of Environmental Conservation told a television reporter alleging the Robert Liere was "bulldozing" his farm to create a "massive solid waste facility," as well as alleging that Liere accepted "land clearing debris" and "yard waste" without obtaining required governmental approvals, just prior to the Department issuing an administrative warrant to inspect Liere’s farm.

Liere sued, contending that he had been defamed by Scully, sued seeking to recover damages. Supreme Court dismissed Liere’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division ruled that Scully had demonstrated that he was entitled to have Liere’s lawsuit dismissed as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege.*

A qualified privilege, explained the court, applies to statements that are " fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."

Scully had shown that he made the statements to which Liere had objected “in his official capacity as regional director of the DEC and that the television reporter to whom he made the statements, and the public in general, had corresponding interests in the statements' subject matter.”

Although the matter could have gone to trial if Liere had shown that there was a triable issue of fact as to whether Scully statements had exceeded the scope of the privilege or whether the statements were made with either spite or ill will [common law malice**] or a high degree of awareness of the statements' probable falsity [constitutional malice***], the Appellate Division ruled that Liere had failed to demonstrate that Scully was guilty of any act that would otherwise defeat his claim to a qualified privilege.

* In contrast, an "absolute privilege" protects the speaker from any and all liability based on statements alleged to be defamatory. Typically this privilege is extended in connection with some governmental function such statements made by a member of a legislative body in connection with his or her legislative duties or when uttered as sworn testimony in a judicial or legislative proceeding.

** Common requires proof of hatred or ill will.

*** See New York Times Co. v. Sullivan, 376 U.S. 254

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09227.htm