Failure to admit having a criminal conviction results in removal from state job

Failure to admit having a criminal conviction results in removal from state job

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are typically available for dispensing but probably would not be relevant in connection with a clerical position in an office.

Transfer of leave credits between jurisdictions may be permitted

Transfer of leave credits between jurisdictions may be permitted

Op St Comp 79-610

The State Comptroller has issued an opinion in which he states that a town may permit employees who transfer to the town from another municipal employer to bring all or some of their annual and sick leave credits with them.

Such a procedure may be authorized by a local law, provision of the controlling collective bargaining agreement or a resolution.

Employer rejects disciplinary hearing officer's recommendation as to the penalty to be imposed

Employer rejects disciplinary hearing officer's recommendation as to the penalty to be imposed

Matter of Stanziale, 77 A.D.2d 600

An employee not entitled to notice and hearing pursuant to §75 of the Civil Service Law was terminated because of an incident that took place while at work.

He then was able to get a court order directing that the employer provide him with an opportunity to refute the allegations that resulted in his dismissal. A hearing was held and the hearing officer recommended that the penalty to be imposed be a six-month suspension without pay.

The appointing officer declined to follow the recommendation of the hearing officer and dismissed the employee, again. The employee went back to court and obtained an order directing his reinstatement on the grounds that the decision of the appointing officer was arbitrary and capricious.

Ultimately the Appellate Division ruled that although the employee was not entitled to a hearing under the Civil Service Law or the controlling collective bargaining agreement, as the basis for dismissal was of a stigmatizing nature, he was entitled to due process.

However, that was the extent of the relief to which Stanziale was entitled. As there was a rational basis for the appointing officer rejecting the recommendation of the hearing officer and dismissing the employee for the offense, the court held that the termination was neither arbitrary nor capricious and was made in good faith.

This case appears to be one of a number decided in recent years where a person not entitled to a hearing as a matter of law or contract can demand one if dismissed for what a court would view as reasons tending to stigmatize the individual.

However, if the terminated employee is vindicated as the result of a “name clearing” hearing a court may direct that the individual be reinstated where it finds that the appointing authority’s  decision to remove the employee, or possibly even the implementation of a lesser penalty, was arbitrary.

Salary due estate of deceased employee

Salary due estate of deceased employee

Op St Comp 79-881

The State Comptroller has advised that a pay check payable to a deceased employee is to be returned to the fund from which it was drawn and then paid to the person legally entitled to receive the money.