An appointing authority may not require an employee to perform "out-of-title" work except in an emergency

The Watertown Professional Firefighters' Association, Local 191 [Association] commenced this CPLR Article 78 proceeding, later converted into a declaratory judgment action, seeking a court order prohibiting the City of Watertown [City] from [1] assigning a fire captain to perform municipal training officer (MTO) duties and [2] assigning  firefighters to ride in the right front seat of the fire department's rescue vehicle and to perform certain duties alleged to those of captain.

The Association contended that both such assignments constituted out-of-title work in violation of Civil Service Law §61(2).* 

Supreme Court's ruled that:

1. The appointing authority may not designate a firefighter to serve as an "acting captain" except in legitimate emergency situations; and

2. The appointing authority may appoint a fire captain to perform "municipal training officer duties."

In the appeal that followed, the Appellate Division said it agreed with the Supreme Court's rulings that the fire captain was not assigned out-of-title work with respect to being assigned MTO duties and that the City was prohibited from appointing firefighters to acting captain positions except in legitimate emergency situations.

The Appellate Division, however, noted that Supreme Court "failed to declare the rights of the parties with respect to the MTO duties performed by the fire captain." Citing Skalyo v Laurel Park Condominium Bd. of Mgrs., 147 AD3d 1358, the Appellate Division modified the lower court's decision by "making the requisite declaration."

* §61(2) of the Civil Service Law provides as follows: No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06898.htm

 

The authority of a governor of New York State to grant individuals reprieves, commutations and pardons

On October 16, 2018, New York Governor Andrew M. Cuomo signed into law as Chapter 374 of the Laws of 2018 a bill permitting the "people" of New York State to pursue state charges against individuals who were "accused of federal crimes and receive a presidential pardon."*

With respect New York State governors issuing a "state pardon or reprieve," Article IV, §4 of New York State's Constitution provides that the "governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons."

Clearly this power to pardon for offenses other than for treason and in cases of impeachment is not available to a sitting governor to grant in anticipation of an individual's being convicted of an offense at some date in the future in contrast to being available to a sitting governor after the individual has been convicted of the offense alleged or in the event the individual entered a plea of guilty to the offense alleged in open court.**

May a governor pardon himself or herself for an offense? 

If a governor were to attempt to do so it appears that in so doing he or she has created a "Catch 22" type situation -- a dilemma from which there is no escape because of mutually conflicting or dependent conditions -- made famous in author Joseph Heller's novel Catch-22.

Assuming, but not conceding, that a governor of New York State could pardon or reprieve himself or herself for an alleged offense, he or she could only do so after having been tried and convicted of the offense or had entered a plea of guilty of the offense before or in the course of a trial in the normal course of providing him or her with due process of law.

However, §30.1(e) of New York State's Public Officers Law provides, in pertinent part, that "Every office shall be vacant upon the incumbent's conviction of a felony, or a crime involving a violation of his oath of office."

As any person eligible for an Article IV, §4 pardon or reprieve is so eligible only by reason of his or her conviction or admission of being guilty of a qualifying offense, an effort by a governor to pardon or grant a reprieve to anyone, including himself or herself, following his or her conviction, or his or her entry of a plea of guilty of the alleged offense, may find himself or herself trapped in a "Catch 22" situation in the event his or her conviction or guilty plea of the offense charged results in his or her automatic "removal from office" pursuant to Public Officers Law §30.1(e) and thus his or her forfeiting any and all authority to grant a pardon or reprieve.

On the other hand, should an individual be found not guilty of the alleged offense, there appears to be no basis, or indeed reason, for a governor to issue a pardon or reprieve under the circumstances as the individual is not exposure to an action "by the people" for the same offense in the future as New York State's Criminal Procedure Law §40.20.1 provides that "A person may not be twice prosecuted for the same offense."

In any event, a pardon or reprieve by a governor is in the nature of "neutralizing a conviction for an offense" by the then sitting governor granted to an individual earlier found guilty of committing an offense in contrast to a sitting governor's effort to neutralize the conviction of an individual found guilty of an offense after such governor has left office.

* New York State's Penal Law was amended by adding a new section, §40.51, authorizing the prosecution of individuals "by the people" of New York State in the event an individual was "granted a reprieve, pardon or other form clemency" by the President of the United States for an offense pursuant to the provisions of §2 of Article II of the United States Constitution "when certain conditions are met" by deeming any federal prosecution of the individual not to have occurred.

** See Depamphilis v Kelly, 107 AD3d 611. A plea of guilty to the offense entered in open court is deemed to be a conviction of the offense.

 

An erroneous statement by a public employee typically does not constitute misconduct sufficient to warrant applying the doctrine of estoppel

Citing 8 NYCRR 279.4(a), the New York State Education Department's Office of State Review [OSR] dismissed the appeal submitted by a party [Plaintiff] unhappy with the decision of the impartial hearing on the ground that the appeal  was untimely filed.

8 NYCRR 279.4(a) provides that a party electing to appeal the hearing officer decision must file the appeal within 40 days of the date on which the hearing officer's decision was issued.*

In a proceeding pursuant to CPLR Article 4 [Special Proceedings] and Education Law §4404(3),** Plaintiff conceded that his appeal was untimely but his lateness  should be excused because an OSR employee gave him "erroneous advice" resulting in his serving his request for review 43 days after the hearing officer's decision was issued.

Supreme Court denied the Plaintiff's petition and dismissed the proceeding. Plaintiff appealed the Supreme Court's ruling to the Appellate Division, contending that as erroneous advice from an employee of the OSR was the cause of his filing an untimely appeal, his late filing of his appeal should be excuse under color of the Doctrine of Estoppel.

Citing Bender v New York City Health and Hospitals Corp., 38 NY2d 662, the Appellate Division explained that the Doctrine of Estoppel "is only applicable to a government agency when the agency acts or comports itself wrongfully or negligently, inducing reliance by a party who changes his or her position to his or her detriment or prejudice."

The court opined that the alleged erroneous statement made by the OSR employee does not constitute misconduct sufficient to warrant applying the doctrine of estoppel as only "a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon, will justify the imposition of estoppel" on a government entity.

The Appellate Division then affirmed Supreme Court's ruling, with costs.

* 8NYCRR 279.4 provides that "[a]party seeking review (petitioner) shall personally serve a notice of request for review and a request for review upon the opposing party (respondent), within 40 days after the date of the decision of the impartial hearing officer sought to be reviewed."

** Education Law §4404(3) provides for the review of the determination of a state review officer in matters concerning children with disabilities.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06530.htm