Disciplinary action follows employee’s refusal to report to a new workstation

Disciplinary action follows employee’s refusal to report to a new workstation

New York City Human Resources Administration v Griffin, OATH Index # 941/12

An employee of the City of New York was reassigned* to a new location. She, however, continued to report to her old work location and then stopped reporting to work altogether.

This resulted in the individual's being served with disciplinary charges alleging that she had refused to report to her assigned workplace, insubordination and AWOL.

Rejecting the employee’s arguments in defense of her actions, including her claim that she wanted a reassignment to another location closer to her home, OATH Administrative Law Judge Kevin F. Casey found the employee guilty of the charges filed against her.

Judge Casey recommended that the individual’s employment be terminated.  

*N.B. Although the decision characterizes the movement of the individual from one workstation to a different workstation within the same agency as a “transfer,” it technically constituted a “reassignment.” The term "transfer" is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel change by the appointing authority within the same department or agency.

Except where there is a "transfer of function," transfers typically required the approval of both appointing authorities and the consent of the individual to be transferred [see Civil Service Law §70.1]. In contrast, a "reassignment" may be made without the agreement or consent of the employee concerned unless otherwise required by a collective bargaining agreement.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-941.pdf

Some decisions concerning using civil service eligible lists

Some decisions concerning using civil service eligible lists

NYPPL readers have asked about "using civil service eligible lists" involving the following situations. As these questions may be of general interest, the responses are summarized below:


Expediting holding an examination

An individual on an eligible list was not entitled to an expedited medical and psychological examination before the existing eligibility list expires. Puntillo v. Abate, 205 A.D.2d 304.

Selection of the highest person on an eligible list

Rule of three upheld with respect to passing over a "higher scoring applicants." Cassidy v. Munic. Civil Serv. Cmsn. of City of New Rochelle, 37 N.Y.2d 526. 

However, appointing authorities may make appointments by selecting individuals for appointment "in rank order," referred to as "the rule of the list," or “the rule of one,” a process typically agreed to in the course of collective bargaining.

N.B. The “rule of one” is followed when making an appointment from a preferred list [Civil Service Law §82]. In contrast, with respect to appointments from reemployment rosters [CSL 82-a] and placement rosters [CSL 82-b] the names of those eligible for appointment from such rosters “shall be certified therefrom with equal ranking for appointment” thereby permitting the appointing authority to select any individual on such a roster without regard to his or her “seniority.”

Breaking ties in an examination: It is lawful to use social security numbers to rank applicants with the same numerical scores but it would be wrong to rank candidates based on their raw scores on the pass/fail portions of a qualifying examination. Napoli v. Levitt, 176 A.D.2d 668.

Appointing authority may not summarily terminate an individual’s General Municipal Law §207-c disability benefits

Appointing authority may not summarily terminate an individual’s General Municipal Law §207-c disability benefits
Kempkes v Downey, 53 AD3d 547

The Chief of Police of the Village of Bronxville suspended the full-salary payments being made to a Bronxville police officer while he was on disability leave pursuant to General Municipal Law §207-c, advising the officer that he would be suspended without pay pending a disciplinary hearing.

The officer sued, contending that the Village was obligated to pay his disability benefits pursuant to General Municipal Law §207-c pending an evidentiary hearing, because the benefits conferred under General Municipal Law §207-c constitute a vested property interest. Supreme Court granted the officer’s petition.

The Appellate Division affirmed the Supreme Court's decision, commenting that “The payment of benefits that have been conferred pursuant to General Municipal Law §207-c constitutes a protected property interest.” 

Significantly, the Appellate Division rejected the Village’s argument that the Westchester County Police Act (Chapter 891, Laws of 1972), "takes precedence" over General Municipal Law §207-c. In this instance the court said that the pertinent issue was whether General Municipal Law §207-c creates a protected property interest in disability benefits such that a predeprivation hearing must be held, even if the Act generally allows for the suspension of a police officer's salary prior to a disciplinary hearing.

The constitutional guarantee of due process provided a recipient of benefits under General Municipal Law §207-c requires that an evidentiary hearing prior to the deprivation of such benefits. Accordingly, said the court, the Village may not discontinue the payment of General Municipal Law § 207-c benefits as a disciplinary sanction without a prior evidentiary hearing.

As the officer had not been given such a hearing, the court prohibited Bronxville from reducing, terminating, or suspending his §207-c benefits “until a final determination of the disciplinary charges has been made after an evidentiary hearing held upon notice.”

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/employer-may-not-summarily-terminate.html