Removing a candidate's name from the eligible list

Removing a candidate's name from the eligible list

Ryff v Westchester Co. Personnel Office, 287 AD2d 723

The Westchester County Personnel Office removed Michael Ryff's name from the eligible list for police officer. Ryff demanded that the Office provide him with copies of reports concerning an investigation that resulted in his previous termination from his position as a probationary police officer with the Westchester County Department of Public Safety. The Appellate Division ruled that Ryff was not entitled to be given copies of such reports.

In addition, it declined to provide “judicial intervention,” ruling that the Personnel Office's determination to remove the Ryff's name from the eligible list after affording him an opportunity to submit written opposition to the disqualification pursuant to Civil Service Law Section 50(4)(e) was neither irrational nor arbitrary.

Civil Service Law Section 50(4)(e) permits the State or a municipal civil service commission to disqualification of an individual who was dismissed from his or her position upon stated charges alleging incompetence or misconduct. Section 50(4) also authorizes a commission to disqualify an individual following an investigation of his or her qualifications and an opportunity to object to such disqualification.

Suspension of retirement allowance upon post-retirement employment

Suspension of retirement allowance upon post-retirement employment

Matter of Grella v Hevesi, 38 AD3d 113

Philip M. Grella retired effective January 1, 2003 after serving as an Assistant District Attorney in Nassau County for 24 years and six years as a Judge of the Nassau County District Court.

Grella was appointed as a Court of Claims Judge effective June 30, 2003 and administratively assigned to Supreme Court. The Retirement System notified Judge Grella that his retirement allowance would be suspended because of his postretirement employment once his earnings reached $25,000. He was also told that because he had been reemployed by the same employer from which he had retired, he could earn up to $36,000 without any diminution of his retirement allowance if he obtained a so-called 211 waiver [see Retirement and Social Security Law § 211].

In addition, the Retirement System decided that the nature of Grella post-retirement employment made him ineligible for the Civil Service Law §150 elective office exception.

The public policy in New York is that in the event a retired member of a public retirement system of this State is employed by State or a political subdivision of the State, his or her retirement allowance is suspended until he or she again retires.* The major exceptions to this policy:

1. Retirement and Social Security Law §212 sets forth limits on annual earnings which a retiree under the age of 65 may earn in public employment without diminution of his or her retirement allowance.

2. Section 150 of the Civil Service Law, which generally provides for the suspension of pension and annuity during a retiree’s post-retirement employment by the state, or of any municipal corporation, or political subdivision of the state, for compensation, does not apply where such compensation is paid in connection with jury duty, or serving as an inspector of election, poll clerk or ballot clerk under the election law, or received compensation for serving as a notary public or commissioner of deeds, or compensation received for serving in an elective public office.

3. The Section 150 exception for election to public officer does not apply in situations where the individual “subsequent to his or her retirement from an elective public office, accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired.” In such cases the retiree’s retirement allowance is suspended until the date he or she vacates such elective public office, unless the amount earned for any calendar year for that elective public office does not exceed the earning limitation provided for retired persons in section two hundred twelve of the retirement and social security law.”

When Grella challenged the Retirement System’s determination, State Supreme Court Justice George B. Ceresia, Jr. ruled that Grella “did not accept elective public office within the meaning of Civil Service Law §150 when he was appointed by the Governor to the New York State Court of Claims” [see 10 Misc.3d 519].

Justice Ceresa said that Grella’s was appointed, rather than elected to his Court of Claims position and this was not converted to elective office merely by reason of his assignment to New York State Supreme Court, an elective position. The Appellate Division agreed and dismissed Grella’s appeal.

On another point, Judge Grella had argued that the Retirement System should be “equitably estopped” from suspending his retirement benefits because, he claimed, he relied on” erroneous advice from an Office of Court Administration [OCA] representative regarding his entitlement to receive benefits” if he accepted postretirement employment with OCA.

Although acting on this advise may have proven detrimental to Grella, the Appellate Division said the doctrine estoppel “generally cannot be invoked against the state or its agencies” because erroneous advice provided by a government employee as “this does not constitute the type of unusual circumstance” triggering the application of the doctrine. 

* The retiree’s retirement allowance is typically not affected in the event he or she accepts employment with a private sector employer, with the federal government or with another State or undertakes self-employment.

Acceptance of gifts by public officials

Acceptance of gifts by public officials

Decision of the Commissioner of Education, Decision No. 15,486

Members of the Board of Education of the Massapequa Union Free School District attended a social event sponsored by the board’s attorneys. Paul Dashefsky, claiming that as the fair market value of the reception was between $200 and $300 per person, complained that such attendance constituted a violation of district policy and General Municipal Law §805-a.

He asked the Commissioner to rule that the board members’ attendance constituted a violation of law and district policy. He also asked the Commissioner to direct the board members “to cease and desist from accepting any prohibited gifts.” Finally, Dashefsky wanted the Commissioner to direct the board members “to publicly disclose all gifts accepted during their term of service;” and to reimburse the district for the fair market value of any gifts accepted in violation of law or district policy.

Although the Commissioner dismissed Dashefsky’s appeal as untimely, he said that “Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.”

Dashefsky had the burden of demonstrating a clear legal right to the relief he sought and the burden of establishing the facts upon which he seeks relief. The Commissioner said that Dashefsky’s claim that the cost of the reception was between $200 and $300 per person was mere speculation as there was nothing in the record to confirm this allegation. Accordingly, said the Commissioner, Dashefsky failed to establish that the dollar limit set out in the statute or the policy had been violated..

The Commissioner, however, said that he felt “compelled to remind [the board members] of the gift prohibitions in the General Municipal Law and their obligations thereunder.” General Municipal Law §805-a(1) states:

No municipal officer or employee shall: a. directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part.

The Commissioner cautioned:

“A violation of §805-a(1) occurs not only where there is an intent to influence or reward an official but also in instances where there is an appearance that a gift will influence the official (Op Atty Gen No. 89-48). Under this standard, it may “reasonably be inferred” that the reception was intended to influence, or “could reasonably be expected to influence” the board’s decision to continue its business relationship with the law firm or to reward the board for past actions, including the retention of the firm’s services.

“As public officials, board members must avoid even the appearance of impropriety. (Op Atty Gen No. 89-48). I thus encourage the individual board members to be scrupulous in their adherence to the gift prohibitions contained in General Municipal Law §805-a(1) and board policy.”

Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years

Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years
Matter of Murphy v Commissioner of Labor, 2011 NY Slip Op 05396, Appellate Division, Third Department

A professional employed by an educational institution is ineligible for unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment.*

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 1, 2010, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Patricia J. Murphy was employed as a per diem substitute teacher in Manhattan and the Bronx by the New York City Department of Education during the 2008-2009 school year for a total of 154 days. On June 12, 2009, claimant was sent a letter by the employer assuring her of continued employment during the upcoming 2009-2010 school year, with the amount of work available and the economic terms and conditions of employment to be substantially the same as in the previous year.

Murphy applied for unemployment insurance benefits for the summer of 2009 buts the Unemployment Insurance Appeal Board ultimately determined that she was ineligible to receive them as she had received a reasonable assurance of continued employment. Murphy appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, holding that the testimony by the school district, together with the letter sent to Murphy indicating a belief she would be offered the same amount of work during the succeeding academic year, provide substantial evidence to support the Board's determination.

* Labor Law §590 [10]

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05396.htm

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Matter of Little v County of Westchester, 36 AD3d 616

Kith Little was disqualified for employment as a Westchester County corrections officer because he had been earlier convicted of misdemeanors.

He sued Rocco Pozzi, the Westchester County Commissioner of Correction, seeking a court order directing his appointment as a corrections officer. The court sustained the Commissioner’s determination that Little’s previous misdemeanor convictions rendered him unfit for the position of correction officer.

The Appellate Division said that the appointing authority has wide discretion in determining the fitness of candidates, “which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

Finding that Pozzi’s decision was neither irrational nor arbitrary, the court dismissed Little’s appeal.

Section 50.4 of the Civil Service Law permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." 

Except in cases of fraud, there is a three-year statute of limitation on disqualifying an employee pursuant to Section 50.4.

Misinformation may be given by a candidate when completing an application for employment. The Angelopoulos case, [Angelopoulos v New York City Civil Service Commission, Appellate Division, First Department], however, did not involve misinformation but rather the omission of certain information from the application form. According to the decision by the Appellate Division, First Department, Angelopoulos was disqualified from his position of police officer on the grounds that he "fraudulently omitted his military service on his application for employment...."

Although Angelopoulos stated that he had no prior military service and that he had never used an alias, it was determined that he had enlisted in the United States Army under the name of Angelo.

This misrepresentation was discovered during a post-employment investigation that revealed that a felony warrant had been issued against Angelopoulos for desertion from the Army and that he was given a "General Discharge in absentia" from the Army. On the basis of this falsification, Angelopoulos was disqualified from the police force for fraud. His dismissal upheld by the New York City Civil Service Commission.

Under Section 50.4 of the Civil Service Law, an individual may be disqualified only for "fraud of a substantial nature" in his application. Angelopoulos argued that he did not commit any fraud as he had agreed to a general discharge in connection with the settlement of a disciplinary matter while in the Army and that "he understood that his period of service was a ‘nullity’, which he need never reveal."

The Appellate Division said that Angelopoulos neither disclosed the fact of his service nor his use of an alias in connection with his military service. This, it ruled, "could not be said that these misrepresentations were immaterial."

The Court also noted that Angelopoulos falsely indicated that he was employed in a civilian job while he was actually in the military, which it said "goes beyond mere concealment." It then sustained his disqualification by the Commission.

Another case, Carchietta v Department of Personnel, 568 NY2d 386, involved the disqualification of a candidate for appointment to police officer positions based on information revealed in the course of a pre-employment checking the applicant's background.

Carchietta was disqualified by the New York City Department of Personnel for appointment as a police officer. The Department had disqualified him on the grounds of "character" following a background investigation. According to the report, Carchietta, as a youth, had been arrested in connection with his alleged participation in the transfer of a forged prescription for illicit drugs. Apparently, the Department decided that his explanation of his involvement in the incident was "questionable."

Claiming that the Department's decision to disqualify him was arbitrary and capricious, Carchietta sued. Rejecting his appeal, the Appellate Division said that Carchietta had failed to present evidentiary facts from which an inference of bad faith, illegality or arbitrary or capricious conduct can be drawn. The court said that record supported the Civil Service Commission's "exercise of its broad discretion" in disqualifying Carchietta for the position of police officer on the basis of his "character."

Section 106 of the Civil Service Law makes it a misdemeanor for any individual to impersonate a candidate in a civil service examination as well as a candidate allowing another individual to impersonate him or her in the examination.

Although litigation involving disqualification of a candidate pursuant to §50.4 of the Civil Service Law is relatively common, cases dealing with alleged violations of §106 are rare. One of the few cases reported concerning violations of §106 is People v Knox, l78 AD 344, a case decided in 1903, in which the Appellate Division ruled that a civil service commission may disqualify an applicant where it finds that fraud or deception has been practiced.

Daubman v Nassau County Civil Service Commission, 601 NY2d 14, notes that §50.4(b) of the Civil Service Law allows a civil service commission to disqualify an individual for appointment if the applicant or appointee "is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of the position...." 

The Daubman decision suggests that a civil service commission should consider the standards imposed by the State's Human Rights Law in determining whether an individual should be disqualified because of a "disability."