Matter of Melvin Deas v. Judith Levitt, Director of NYC Department of Personnel
Petitioner took a promotional competitive exam in 1983 and obtained the third highest score on the list in 1984 but was deemed psychological unfit. He appealed the disqualification and underwent a second psychological evaluation. In 1985, the New York City Director of Personal disqualified petitioner for medical reasons based on the psychiatrists’ reports. Petitioner appealed the decision. On August 14, 1986, the Civil Service Commission reversed the decision and declared petitioner medically eligible. On September 5, 1986, petitioner was notified that he could not obtain the position because the eligible list expired on August 27, 1986. Petitioner then requested that his name be placed on a special eligible list. His request was denied and petitioner commenced this article 78 proceeding. Supreme Court dismissed the petition but the Appellate Division reversed and granted the petition.
Petitioner argued that having successfully completed the examination he would be entitled to be considered for promotion. A competitive examination may demonstrate merit and fitness at the time of the exam but as time passes, the exam becomes a less valuable representation. Individuals who have taken a more recent exam may be more fit and better prepared. Petitioner did not allege that the eligible list was constitutionally invalid. The rule requiring civil servants to be appointed from a current and not expired list is constitutionally mandated and far from arbitrary or irrational.
Accordingly, the Appellate Division reversed the decision of Supreme Court and dismissed the petition reinstated, without costs.
New York City Charter § 813, Chapter 35: Department of Citywide Administrative Services
According to the NYC Charter § 813, the city civil service commission should consist of five members appointed by the mayor from a list of nominations provided by the screening committee. They will serve for overlapping terms of six years and be reimbursed on a per diem basis.
The screening committee that provides the mayor with the mentioned list of nominees consists of six members with knowledge or experience of the civil service system, or personnel management, or compensation practices. Four of these members should be appointed by the mayor and the remaining two appointed by the municipal labor committee.
The commission will appoint a counsel and may appoint a secretary or any other subordinates deemed necessary.
The civil service commission has the power to hear and determine appeals by individuals aggrieved by any action or determination of the commissioner. They may affirm, modify, or reverse the action or determination in dispute. The appeals must be in writing to the commission within thirty days from the date of the action or determination.
The commission has the power and duty to conduct reviews, studies, or analyses of city administrative personnel including the classification of titles by the commissioner.
The commission will prepare and transmit departmental estimates directly to the mayor.
Below is the full NYC Charter § 813:
LEXSTATN.Y.CITY CHARTER 813
NEW YORK CITY CODE, CHARTER AND RULES
NEW YORK CITY CHARTER
CHAPTER 35: DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES*
NYC Charter § 813
§ 813 City civil service commission.
a. There shall be a city civil service commission, consisting of five members,
not more than three of whom shall be members of the same political party.
Members shall be appointed by the mayor, from a list of nominations provided by
the screening committee established pursuant to subdivision b of this section,
for overlapping terms of six years. Of the members first appointed, two shall
serve for two years and two for four years and one for six years. The members
shall be removable in the manner provided for members of a municipal civil
service commission in the civil service law. A vacancy in such commission shall
be filled in the same manner as regular appointments for the balance of the
unexpired term. The mayor shall designate a member as chair and vice chair,
respectively, for one-year terms. Within appropriations for such purposes, the
members of the commission shall be reimbursed on a per diem basis for attendance
at regularly scheduled meetings and hearings of the commission.
b. There shall be a screening committee which shall submit to the mayor a
list of nominees, which shall include persons with knowledge or experience of
the civil service system, or personnel management, or compensation practices,
from which the mayor shall make appointments to the city civil service
commission. Such screening committee shall consist of six members, of whom four
shall be appointed by the mayor and two shall be appointed by the municipal
labor committee. The screening committee shall submit the list of nominees upon
the occurrence of any vacancy on the commission or at least three months prior
to the expiration of the term of any incumbent member.
c. The commission shall appoint a counsel, who shall not be employed or
retained by any other city agency, and may appoint a secretary and such other
subordinates as may be necessary within the appropriation therefor.
d. The civil service commission shall have the power to hear and determine
appeals by any person aggrieved by any action or determination of the
commissioner made pursuant to paragraphs three, four, five, six, seven and eight
of subdivision a or paragraph five of subdivision b of section eight hundred
fourteen of this chapter and may affirm, modify, or reverse such action or
determination. Any such appeal shall be taken by application in writing to the
commission within thirty days after the action or determination appealed from.
The commission shall also have the powers and responsibilities of a municipal
civil service commission under section seventy-six of the state civil service
law. In accordance with the requirements of chapter forty-five, the commission
shall promulgate rules of procedure, including rules establishing time
schedules, for the hearings and determinations authorized by this section.
e. The commission, on its own initiative, or upon request of the mayor,
council, or commissioner, shall have the power and duty to conduct reviews,
studies, or analyses of the administration of personnel in the city, including
the classification of titles by the commissioner.
f. The commission shall prepare and transmit directly to the mayor
departmental estimates as required by section two hundred thirty-one. The mayor
shall include such proposed appropriations for the commission as a separate
agency in the preliminary and executive budgets as are sufficient for the
commission to fulfill the obligations assigned to it by this charter or other
law.
HISTORICAL NOTES:
Section renumbered and amended L.L. 59/1996 § 1, eff. Aug. 8, 1996, formerly
§ 812.
Section amended L.L. 8/1963.
Section amended at General Election, November 4, 1975.
Section amended at General Election, November 7, 1989.
Subds. a, c amended at General Election November 8, 1988.
Petitioner brought about this article 78 proceeding to review the determination of and vacate the revocation of his pistol license and reinstate it on the grounds that the decision was arbitrary and capricious.
The officer who filed the initial complaint that resulted in the pistol permit revocation failed to attend Petitioner’s hearing. Additionally, the Hearing Officer refused to allow Petitioner’s attorney to cross-examine the witnesses. The Petitioner must be given the opportunity to confront and cross-examine witnesses as is entitled to him in his right to due process.
Accordingly, the Court vacated Respondent’s determination and referred the matter to the Nassau County Police Department to conduct a de novo hearing with the right of cross-examination.
National Medical Health Card Systems Inc. v. Fallarino
This action was commenced by Plaintiff, National Medical Health Card, Inc. (NMHC), against its former employee, Defendant, Joseph Fallarino. Fallarino then counterclaimed seeking money damages for breach of contract by wrongful termination.
When Fallarino applied to the job at NMHC, he falsified information on his resume. In the process of the interview process, no one at NMHC ever did a thorough enough background check to discover the inaccuracies in Fallarino’s resume. He was hired in June of 2004. Early 2005, two women that worked under Fallarino accused him of sexual harassment. In March, NMHC fired Fallarino due to allegations of sexual harassment. Upon his termination, the company offered Fallarino an ultimatum, he could receive one-half of the severance previously agreed upon or he would be fired for cause and lose his benefits, get a bad reference, and receive no unemployment.
Following his termination, NMHC discovered the omissions and misstatements in Fallarino’s resume. They then brought about this action against Fallarino claiming fraud and therefore a breach of contract which meant they would not owe him any severance pay. The Court felt that NMHC could have discovered the false information on Defendant’s resume prior to hiring him since they were, in fact, able to confirm the inaccuracies after his termination. Also the company did not suffer any damages due to Fallarino’s alleged fraud.
In regards to Fallarino’s counterclaim, his termination was wrongful because the two reasons given for his termination were inadequate. The first reason, the misstatements in his resume, could not serve as a basis for his termination because NMHC had adequate opportunity to investigate Fallarino’s background but chose not to and did not do this research until after firing him. Also, the alleged sexual harassment charges could not serve as a basis for his termination because the instances were isolated and uncorroborated and did not legally rise to the level of actionable sexual harassment warranting the rapidity of the firing. The evidence did not demonstrate a concrete basis under the contract to fire Fallarino.
Accordingly, the Court ordered that Fallarino is entitled to the salary benefits, and car allowance, together with interest from the date of his termination as well as other benefits under his contract.
Commissioner of Education distinguishes between positions in the Unclassified Service and the Classified Service in determining an employee’s tenure status
Appeal of Kristine deVente and Jocelyne Jesenof from action of the Broome-Delaware-Tioga Board of Cooperative Education Services, Jennifer Mondolfi and Mary Jo Rankin, regarding termination of employment, Decisions of the Commissioner of Education, Decision No. 15,822, decided August 14, 2008
This decision by the Commissioner of Education illustrates the fact that some “professional positions” established by a school district or a BOCES are not in the unclassified service as defined in Section 35 of the Civil Service Law and are thus subject to the jurisdiction of the responsible civil service commission for the school district or BOCES.
The Broome-Delaware-Tioga Board of Cooperative Educational Services (BOCES) hired Kristine deVente in 1997 as a part-time “Professional Development Specialist.” The duties of her position involved training teachers, administering a number of BOCES programs and occasional teaching. Effective July 1, 1999, deVente’s position became full-time, and ultimately BOCES granted deVente “tenure” effective August 7, 2002.
On September 16, 1998, the BOCES appointed Jocelyne Jesenof (“Jesenof”) to the position of “Professional Development Specialist” for a three-year probationary period in the tenure area of elementary education. Her duties of her position involved providing multi-cultural educational services and some classroom instruction and she was granted “tenure” effective September 15, 2001.
In 2003 deVente’s position was made part-time (.5) and Jesenof’s position was abolished.
In this appeal to the Commissioner of Education both deVente and Jesenof claim that they have greater seniority in the elementary education tenure area than two other BOCES teachers, Mondolfi and Rankin. They ask that the Commissioner direct the BOCES “to reinstate them to full-time positions in the elementary education tenure area, nuncpro tunc, as of September 1, 2003, along with benefits incident to such reinstatement.”
Although BOCES attempted to have the Commissioner dismiss the appeals filed by deVente and Jesenof as untimely, the Commissioner excused their failure to commence this appeal within 30 days because their delay was due to an attempt to litigate this dispute in court.
This, however, proved to be an illusory victory for both deVente and Jesenof as the Commissioner ruled that neither of them established that they were employed as professional educators within the meaning of Part 30 of the Rules of the Board of Regents. In §30.1(e) of the Rules, a professional educator is defined as:
[A]n individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the commissioner to the State Civil Service Commission pursuant to the provisions of 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.
Both deVente and Jesenof conceded that BOCES had appointed them to positions of Professional Development Specialist. The position of Professional Development Specialist, however, is not among the positions certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school district. Since petitioners were not employed as professional educators as that term is defined in Part 30 of the Commissioner’s regulations, the protections of that Part do not apply to their employment.
Further, the Commissioner found that neither deVente nor Jesenof established that the work that they performed was in the tenure area of elementary education. Part 30 of the Rules of the Board of Regents establishes the various subject tenure areas that must be used for teachers hired after August 1, 1975. In regard to the tenure area of elementary education, §30.5 of the Rules of the Board of Regents provides:
A professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the elementary tenure area.
Section 30.1(g) of the Rules defines “substantial portion of his time” as:
40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities.
While both deVente and Jesenof hold permanent certification in elementary education, the Commissioner said that they never devoted at least 40% of their work time to classroom instruction. Rather, the BOCES employed petitioners in its “Center for Education Support and Technology.” As such, deVente and Jesenofnever served in the elementary education tenure area while employed by the BOCES.
Accordingly, said the Commissioner, neither deVente nor Jesenof can now claim that they have more seniority in elementary education than respondents Mondolfi and Rankin.
The Commissioner then commented that “Although I am constrained to dismiss this appeal, I note that when [deVente and Jesenof] commenced their employment with the BOCES, respondent board lacked the authority to offer them tenured positions as Professional Development Specialists. I remind respondent board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.”
In other words, the positions to which both deVente and Jesenof had been appointed jurisdictionally were in the classified service and therefore subject to position classification by the responsible civil service commission and subject to the relevant provisions of the Civil Service Law with respect to appointment, retention and related attributes of such an employment status in the public service.
The full text of the Commissioner’s decision is posted on the Internet at:
Defendant, Roberta Gazzola’s, son, Christopher, was arrested and charged with Driving While Impaired. He was driving his mother’s car without her permission at the time. According to Nassau County Administrative Code § 8-7.0(g)(4)(a), Christopher was given a “Vehicle Seizure Notice” at the time of his arrest. The County commenced this action seeking civil forfeiture of the vehicle against the Gazzolas and Daimler-Chrysler, the company Roberta purchased the vehicle from. Daimler-Chrysler then filed a cross-claim seeking to repossess the vehicle based on an “innocent lienholder” defense. The Gazzolas then cross-moved for dismissal, claiming to be an “innocent owner”.
The County, though able to establish that the car was used in violation of Vehicle and Traffic Law § 1192, failed to establish that Ms. Gazzola gave Christopher permission to use her car, that she had any reason to believe that he would do so or that he would do so in an illegal fashion. The County recognizes that Daimler-Chrysler had a superior right to the vehicle but not over defendant since the circumstances that would have given Daimler-Chrysler the right the repossess the vehicle from Ms. Gazzola were not demonstrated here.
Accordingly, the Court dismissed the complaint and all cross-claims. Roberta Gazzola’s motion was granted and it was declared that neither the County nor Daimler-Chrysler had rights superior to her on her vehicle.
