ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

November 01, 2018

Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious


Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious
Hayes v Nigro, 2018 NY Slip Op 07124, Appellate Division, Second Department

New York City Firefighter Sean Hayes charged with violating New York City Fire Department [FDNY] rules and regulations barring the use of prohibited substances.

In lieu of going forward with a disciplinary proceeding, Hayes settled the matter by entering into a stipulation with the FDNY that [1] allowed him to vest his pension in lieu of facing the penalty of termination and [2] set out his admission to conduct reflecting discredit upon the FDNY arising out of his testing positive for methadone during a random drug test while he was working and violations of the oath of office.

Some three years later Hayes applied for reinstatement to his former position with FDNY. His application was rejected by the Commissioner in consideration of his disciplinary record and the untimeliness of the request. Hayes then initiated an Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement to his former position of firefighter.*

The Supreme Court denied the Article 78 petition and Hayes appealed the court's decision.

Sustaining the Supreme Court's decision, the Appellate Division explained that:

1. A request to the Commissioner for the reinstatement of a firefighter must be made within one year from the date of his or her separation from the FDNY and Hayes' request some three years after his resignation was untimely;

2. Reinstatement is not a right and the decision to reinstate a former employee is within the sole discretion of the Commissioner, and who is not required to state a reason for denying the reinstatement; and

3. The Commissioner's determination rejecting the request will be sustained  unless it is shown to be arbitrary or capricious or an abuse of discretion.

In this instance, said the court, Hayes did not seek to be reinstated as a FDNY firefighter until almost three years after he had left the FDNY after admittedly illegal and potentially dangerous conduct. Thus, said the Appellate Division,  agreeing with Supreme Court, "the determination of the Commissioner was not arbitrary, capricious, or an abuse of discretion."

Addressing Hayes' efforts with respect to "discovery," the Appellate Division said that such discovery was "not relevant to the Commissioner's individualized and discretionary assessment of [Hayes'] application" for reinstatement.

* Hayes also sought discovery of the FDNY's records of all applicants for reinstatement for the period from January 2014 to the date of the commencement of his Article 78 proceeding. 

The decision is posted on the Internet at:

Recently posted on the Internet

AELE Monthly Law Journal
Public Safety Employee Right to "Name-Clearing" Hearings


Fire, Police & Corrections Personnel Reporter
This issue has cases on age discrimination, arbitration procedures, collective bargaining, Fair Labor Standards Act: overtime in general, handicap/abilities discrimination: in general, handicap/abilities discrimination: “regarded as” disabled, retaliatory personnel actions, and union activity. View at: http://www.aele.org/law/2018all11/FP2018NOV.html


October 31, 2018

Disciplinary probation


Disciplinary probation
Reillo v New York State Thruway Auth., 2018 NY Slip Op 02170, Appellate Division, Second Department

New York State Thruway Authority employee Anthony Reillo was served with  disciplinary charges alleging certain misconduct.

Reillo and the Thruway Authority then entered into a stipulation settling the disciplinary action whereby Reillo agreed to a one-year period of "disciplinary probation" which provided that the Thruway Authority could summarily terminate Reillo from his employment for any similar act or acts of misconduct. 

In addition, settlement stipulation provided that the determination that Reillo had engaged in such misconduct was to be at the sole discretion of the Thruway Authority.

In February 2016, the Thruway Authority terminated Reillo's employment based on incidents that occurred while he was still serving as a  disciplinary probationer. Reillo file an Article 78 petition seeking a court order directing the Thruway Authority to reinstate him to his former position with back salary.

Supreme Court denied the petition and dismissed the proceeding on procedural grounds, finding that Reillo failed to serve the notice of petition on the Attorney General as required by CPLR §7804(c). Reillo appealed but the Appellate Division affirmed the Supreme Court's determination.

CPLR §7804(c) provides that when a CPLR Article 78 proceeding is commenced against a "state body or officers" by a notice of petition, the notice of petition must be served upon the Attorney General. Following a "particularized inquiry" into the nature of the Thruway Authority and the statute claimed to be applicable to it, the Appellate Division concluded  that the Thruway Authority is a "state body" for the purposes of CPLR §7804(c). Thus, said the court, as the Attorney General had not been timely served, Supreme Court properly dismissed Reillo's petition.

Although the merits of Reillo termination was not considered in this action, it should be noted that frequently a settlement of a disciplinary action provides for the employee to serve a disciplinary probationary period and, as in Reillo, the individual is subject to being summarily terminated "without notice and hearing" if he or she violates the terms or conditions of his or her "disciplinary probation" settlement.

If, however, an employee is to be dismissed for violating the conditions of the disciplinary probation, the appointing authority must to make certain that the actions, or omissions, cited for triggering the termination of the employee serving the disciplinary probationary period do indeed violate the specific terms or conditions enumerated in the disciplinary settlement agreement as the decision in Taylor v Cass, 122 AD2d 885, demonstrates.

Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after he was summarily, and as was ultimately determined, improperly, dismissed from his position while serving a disciplinary probation period.

In Taylor's case the terms of the disciplinary probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job during the next six months." Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement of the disciplinary action agreement: intoxication on the job.

As the court noted in  Matter of Sepulveda, 123 AD2d 703, even employees who would otherwise be entitled to the benefits of Section 75 of the Civil Service Law or a similar statute, an employee's agreement to be placed on probation pursuant to terms set out in a settlement of a disciplinary action agreement sacrifices the notice and hearing requirements that would otherwise be available to the employee by such statute for the duration of his or her disciplinary probationary period.

Additionally, it is good practice make certain that the employee’s acceptance of disciplinary probation is set out in settlement of the disciplinary action agreement is made openly, knowingly and voluntarily and be memorialized to that effect in the written agreement signed by the parties.

The decision is posted on the Internet at:


CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.