New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

According to Sheriff Kevin Walsh, two jail deputies have been disciplined as a result of an investigation into an inmate suicide at Onondaga County Justice Center in 2008. The first deputy was suspended and the second was counseled and retrained. Inmate, Michael Tew, 19, had been charged with second-degree arson and violating terms of probation from a 2006 incident. On November 2, 2008 at 7 a.m. Tew was found dead in his cell after hanging himself. It was concluded that he had been dead for three to four hours by the time his body was discovered, even though the first deputy performed checks every half-hour and the second deputy toured the cells at 4:15 a.m. The suspended officer failed to perform the Justice Center’s required population count at 6:30 that morning. It is impossible to know whether Tew’s death could have been prevented even if rounds had been made promptly because he would have enough time between them to kill himself. As a result the first deputy was suspended for 30 days without pay then assigned to the Temporary Assignment Unit. Sheriff Walsh is waiting on a Civil Service hearing where he is looking to have the deputy terminated. Unfortunately no comments made by Tew threatening to take his life were reported to authorities.  

Read full article here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Former Saranac Lake Police Chief Donald Perryman was involved in a cover up involving two police officers who were in a car accident on their way home from a training seminar. The officers admitted to drinking that afternoon. Perryman directed another officer to drive the two officers home, arranged to have the car towed from the scene of the accident and did not compel the officers to submit to alcohol testing. Perryman has been charged with 12 counts of misconduct. He filed an Article 78 appeal following his termination claiming that the hearing board’s decision was arbitrary and capricious. The state appeals court dismissed Perryman’s claim and upheld the ruling of the board.

Read full article here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A Supreme Court Justice decided to extend a temporary restraining order barring Colonie’s personnel chief, Michael Foley, from considering the appeals of two demoted highway supervisors for another ten days. The stay was first issued in December 2008 after the town sough to freeze the process arguing that the supervisors had already appealed their demotions and that Foley had a conflict of interest.

The Town Board demoted these two men in December 2008 and they subsequently appealed to Foley and commenced a lawsuit on the town in Supreme Court alleging that the public works commissioner and not the Town Board had the authority to discipline them. Originally, the supervisors received suspensions without pay for two months which the town then changed to demotions with pay cuts.

The judge wants to prevent Foley from taking any action regarding the appeals until after he has a chance to hear arguments on both the pending lawsuits.

Read article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Jason Longton Jr. v. Village of Corinth

Petitioner Jason Longton Jr. brought about this Article 78 proceeding to review the determination of the Village of Corinth Board of Trustees terminating his employment as a police officer. Petitioner began working as a police officer in 2003. In 2004, he was charged with violating multiple department rules and suspended. The most serious charge was insubordination involving his investigation of an individual after receiving a direct order by the Chief of Police not to do so. Following a hearing, petitioner’s employment was terminated but the determination was later annulled due to an issue with improper stenographic transcription. A second hearing resulted in a recommendation for termination which the Board of Trustees enforced. Petitioner then commenced this appeal.

In August 2004, petitioner quarreled with a restaurateur, Trevor Downie, during a traffic stop. Downie complaints about petitioner’s conduct were then forwarded to the Chief of Police. Petitioner then confronted Downie at his restaurant resulting in Downie threatening a lawsuit against the Village of Corinth. Further altercations between petitioner and Downie led to the Chief of Police ordering petitioner to stop any investigation or contact with Downie. Petitioner ignored the orders and continued investigating Downie secretly.

Petitioner argued that the penalty of termination was excessive. The Court feels that petitioner, being an employee of short duration, deliberately disobeying the orders of the Chief of Police constitutes conduct at odds with the strict discipline necessary to perform the duties of a police officer and therefore the penalty was not shocking.

Accordingly, the Court confirmed the determination, without costs and dismissed the petition.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

DEP v. Nuccio and Williamson  OATH Index #s 2360/08 &2361/08 (9/26/08)

Response to 911 call without supervisory approval was proper. 

Nuccio and Williamson were experienced officers who patrolled watershed areas in upstate New York. In May of 2007 the DEP issued an interim order directing officers not to respond to 911 calls without supervisory approval.  This directive was to avoid DEP officers responding to routine calls in local jurisdictions. In Ulster County a 911 call generates a 911 "poll" seeking response from local law enforcement.  When a 911 "poll" is transmitted the DEP supervisor would authorize a DEP response.  

On 10/2/07 when Nuccio and Williamson were patrolling near the Ashokan Reservoir Ulster County received a 911 call for a domestic violence complaint across from the Reservoir.  Respondent's were 2 to 3 miles away at the time of the call.  No units responded to the first poll and it was retransmitted. Thereafter, respondents picked up the call.  They called their base and asked the officer assigned to desk duty to get the supervisors approval.  Sergeant Wood called the base and denied the officer request to handle the domestic violence 911 call. Inspector Milazzo overturned the Sergeant's disapproval after learning that the officers had already comitted to pick up the job to the 911 operator.

ALJ Kevin Casey analyzed the "obey now, grieve later" principal as it applied to the respondents action.  Common sense dicates that the "obey now, grieve later" concept does not apply and common sense dictates that orders do not apply when adherence would pose a threat to health and safety of employees or others. Officers must show that an imminent threat justifies disobedience of an order.  eg.  officer with allergies, asthma, heart disease justified not reporting to site near Ground Zero;  failure to inspect justified not operating vehicle.  HRA v. Dottin OATH Index 1260/02 and DOS v. Jones OATH Index 2186/99 respectively. 

Judge Casey ruled that the respondents proved that the health and safety exception applied and dismissed the charges against the officers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Transit Authority v. Wong

This Article 75 disciplinary proceeding was brought about by Petitioner, NYC Transit Authority, against Respondent, Sze Tung Wong, alleging incompetence and misconduct and seeking termination. Respondent was accused of being unable to complete tasks appropriate to his position and title of Computer Specialist II, being uncooperative and unwilling to complete assignments in a timely manner.

Respondent’s incompetence charges include being unable to retrieve files from a shared library, failing at completing basic Oracle-related assignments, and not completing an analysis of data error log. He was also accused of misconduct for refusing to participate in a scheduled roll-out, purposefully delaying a work assignment, and being uncooperative and confrontational during the roll-out of a new program.

After reviewing all of the evidence and testimonies, the OATH judge dismissed the misconduct charges but agreed with the allegations of incompetence. She felt that Respondent clearly was not able to perform certain aspects of his job without intensive instruction and supervision. In light of his lengthy tenure with the City, the judge felt that termination was too harsh of a punishment. Instead, she recommended demotion as a more fitting penalty that would give Respondent another chance to prove himself in a less demanding position.

Accordingly, the Judge ordered Respondent demoted from his position of Computer Specialist II to a position better suited to his skills and knowledge.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Challenging an administrative determination by a civil service commission

Challenging an administrative determination by a civil service commission
Horn v The New York City Civil Service Commission, 43 A.D.3d 760, Appellate Division, First Department

Sharhann Lane, had been terminated from her position with the New York City Department of Corrections. She appealed to the New York City Civil Service Commission, which directed the Department to reinstate her to her former position.

Martin Horn, the Commissioner of the New York City Department of Correction, filed an Article 78 petition seeking to annul the Commission’s determination reinstating Lane to her former position as a correction officer.

Citing Matter of New York City Dept. of Envtl. Protection v New York City Civil Service Commission, 78 NY2d 318, the Appellate Division ruled that the lower court properly dismissed the Commissioner’s petition as a determination by the New York City Civil Service Commission is subject to judicial review only if “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”.

Source: Initially published on the Internet inNew York Public Personnel Law. Reproduced with permission. Copyright© 2006, 2007, 2008, Public Employment Law Press.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Monreal v Administrative Review Board of the State Board for Professional Medical Conduct

Petitioner, F. Javier Monreal, brought about this Article 78 to review determination of respondent which revoked petitioner’s license to practice law in New York. Last year, petitioner who is a pediatric neurologist was personally served with a notice of hearing and statement of charges alleging multiple instances of misconduct involving his treatment of 12 children. When contacted by the Administrative Law Judge (ADJ), petitioner said he would not attend the hearing. All subsequent letters regarding the upcoming hearing petitioner returned unopened. Due to petitioner’s failure to respond, the charges were deemed admitted and his license to practice medicine in New York was revoked.

Petitioner argued that he suffered from a mental health affinity and thus the Committee’s decision should be vacated and a hearing conducted. No evidence exists to support a claim that petitioner did not understand the charges against him. In fact, the evidence proves the contrary. Instead of answering the charges, petitioner wrote a letter to the Department of Health and State Board for Professional Medical Conduct saying that he was commencing a separate action to prevent the hearing from taking place. These circumstances make it apparent that petitioner understood the charges against him and was able to assert his legal rights.

Accordingly, the Supreme Court confirmed the determination, without costs and dismissed the petition.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Reinhard v City of New York

Petitioner, Christopher Reinhard, brought about petition to appeal the decision terminating him from the FDNY for illegal drug use. Petitioner argued that he was denied due process because the disciplinary hearing was conducted in his absence. The Court made multiple attempts to contact petitioner at his home address, through his attorney, and through his union. Petitioner did not inform the Court that he had entered an inpatient treatment facility. He was fully aware that disciplinary action would follow his positive test result and should have given notice of a change of address. Accordingly, the Supreme Court dismissed the petition, without costs.

Kirk v City of New York

Petitioner, Michael Kirk, tested positive for cocaine during a random drug test and the Fire Department terminated his employment. Petitioner argued that the random drug testing policy is unconstitutional. Although alcohol dependency qualifies as a disability under Human Rights Law, drug abuse does not and petitioner failed to prove his drug use to be casually related to his alcoholism. Accordingly, the Supreme Court dismissed the petition, without costs.

O’Neill v City of New York

Petitioner, Kevin O’Neill, was terminated for testing positive for marijuana during a random drug test under a zero tolerance policy in effect at the time of the decision. Petitioner argued that changes were made to the Fire Department’s policy regarding drug usage subsequent to his termination. The Court rejects petitioner’s claim that the changes should be retroactively applied to his case. Accordingly, the Supreme Court dismissed the petition, without costs.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Lackow v Department of Education of City of New York

Supreme Court granted petitioner, Douglas Lackow’s, petition to have certain determinations of teacher misconduct vacated and remanded for imposition of a lesser penalty than termination of employment in January of 2007.

Respondent, Department of Education of the City of New York brought about this appeal seeking reconsideration. A number of complaints were filed against petitioner concerning his use of sexual innuendo in high school classes he taught. Petitioner made multiple inappropriate comments to different students that can be verified by witnesses.

In light of petitioner’s proven misconduct and the fact that he had been warned in writing three times about the inappropriateness of his behavior, the penalty of dismissal does not shock the conscience. The repetitive nature of petitioner’s misconduct is especially alarming. Such conduct is indicative of a continued pattern of offensive behavior that reflects an inability to understand the necessary separation between a teacher and his students.

Accordingly, the Supreme Court ordered the petition to vacate certain determinations of teacher misconduct and remand for imposition of a lesser penalty than termination reversed, the cross motion to dismiss granted, and the petition dismissed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of DeStefano v Board of Cooperative Educational Services of Nassau County

Index No. 11638/06

Petitioner brought about this Article 78 proceeding to review a determination by the Board of Cooperative Educational Services of Nassau County (BOCES) demoting her from her position as a Teacher’s Aide to that of a School Monitor awarding her back pay of $25,927.05. January 2004, BOCES found petitioner guilty of misconduct and terminated her employment as punishment. In February 2006, the Court found that the sanction of dismissal was so disproportionate to petitioner’s misconduct as to be shocking to one’s sense of fairness and demanded a less severe punishment. March 2006, BOCES demoted petitioner to the position of School Monitor and awarded her back pay based on a School Monitor’s salary, which was less than a Teacher’s Aide salary.

 Petitioner commenced an instant proceeding to review BOCES’ determination. The Supreme Court dismissed the proceeding. No basis exists for annulling the determination of BOCES to base the back pay on a School Monitor’s salary.

 Accordingly, the Supreme Court ordered that the judgment is affirmed, without costs.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Loscuito v Scoppetta

Article 78 proceeding was sought to review a determination of Nicholas Scoppetta, as Fire Commissioner of the City of New York. Petitioner knowingly made false statements to investigators in the course of an investigation. Additionally, petitioner was found guilty of six charges of misconduct. The petitioner’s false statements made under oath related to serious charges implicating the integrity of the FDNY gave good reason for his termination and was not so disproportionate to the offenses to be shocking to one’s sense of fairness.

 Accordingly, the Supreme Court ordered that the determination is confirmed, the petition is denied, and the proceeding dismissed on the merits, with costs.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Gilliam v. New York City Department of Sanitation

Index No. 1664/08

Charles Gilliam, Petitioner, moves, by order to show cause, to withdraw his resignation from the New York City Department of Sanitation, Respondents.

 Mr. Gilliam while a uniformed sanitation worker, tested positive for cocaine in June 2007. Accordingly, he was suspended and sent to a rehabilitation center. Prior to returning to work, Mr. Gilliam submitted to a second drug test in August 2007 and again failed. After his two failed drug tests and his attempt at rehabilitation, DSNY gave Mr. Gilliam a third chance in the form of a Last Chance Agreement. The Last Chance Agreement was an offer for Petitioner to accept a plea bargain to resolve all departmental charges against him. By signing this agreement, Petitioner waived any hearing or right to be heard for the purpose of contesting a subsequent positive drug test or refusal to test and have the Department Advocate the right to submit his resignation in the case of a third positive drug test. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was aware that a third positive drug test would result in the termination of his employment.

 In November 2007, Petitioner failed a drug test for the third time. The urine sample, Mr. Gilliam submitted was substituted and found to be not urine. As a result of these laboratory findings, as required by the Last Chance Agreement, Petitioner’s resignation was submitted.

Mr. Gilliam does not dispute the test results but claims that the City and DSNY should have treated him for a line of duty injury due to Post Traumatic Stress Disorder caused by his experiences working during the 9/11. Mr. Gilliam, however, has failed to present the Court with any documentation that he worked at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. While, the Court is sympathetic to Petitioner’s plea for help, they feel he has been given ample opportunity by respondents to solve his drug and alcohol problems.

 Petitioner Gilliam failed to present any evidence that he was coerced to sign the Last Chance Agreement. He voluntarily entered into his Last Chance Agreement in order to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse.

 Accordingly, the Supreme Court denied the petitioner’s order to show cause and granted respondents’ summary judgment and dismissal of the instant petition.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A recent article in the New York Law Journal reported that the NYPD Department Advocate’s Office is now “civilianized”. The Department Advocate’s Office, which prosecutes officers in courtroom hearing before administrative law judges, is now composed of veteran litigators recruited primarily from the offices of district attorneys and the Legal Aid Society.

 Traditionally, the advocate’s office has been staffed by police officers straight out of law school. In 2005, Commissioner Raymond Kelley hired Julie Schwartz, former chief of the Sex Crimes and Special Victims Bureau at the Brooklyn District Attorney’s office, to alter the public perception of the advocate’s office. Ms. Schwartz’ aim was to “professionalize” the advocate’s office as a legal agency.

 This effort to bring credibility to the department has given way to a plethora of benefits to the parties involved. Officer-lawyers pursuing criminal charges against fellow police officers were commonly referred to as “rats” and most officers did not desire the position of a rat. Now, with the shift to civilian attorneys, more police officers are back out on patrol. A handful of the 25 lawyers under Ms. Schwartz command are uniformed police officers but these individuals do not have caseloads nor do they try cases.

 Positive statistics show prove an “improvement of the quality of service” provided by the civilian lawyers. In the past three years, since Ms. Schwartz’ reform, trials have gone down and negotiations have gone up. This means that the NYPD advocate’s office is being more careful about what they bring to trial. Also, fewer dismissals mean more credibility with the public and fewer cases brought to trial mean less unnecessary anxiety for police officers.

 Read entire article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Chan v. Kelly, the New York Police Department, and the City of New York
Index No. 110513/07

Petitioner William Chan sought reinstatement as a police cadet by respondents Raymond Kelly, the New York City Police Department, and the City of New York in this Article 78 petition. 

Patrol Guide §212-34 governs probationary police officers, and states in part that when a probationary police officer or person eligible for appointment to the NYPD is involved in a police incident, a member of the service must report the incident to a commanding officer. The Police Cadet Corps Handbook also states, at § 105-4, that “[a] police incident not only involves arrests but includes all police incidents”. 

While Chan denies he violated written procedure, he does not deny that he left the scene of a serious multi-car accident, that he did not attempt to render assistance, and that he failed to notify a commanding officer. On the basis of these facts, respondents concluded that Chan violated Patrol Guide §212-34 and “failed to demonstrate the integrity, judgment, and character required of either a New York City Police Officer or a Police Cadet”. 

The court wrote that:

“Chan’s petition does not meet this burden [of bad faith]… On the contrary, evidence in record supports the conclusion Chan was discharged by respondents in good faith on the basis of his unsatisfactory performance.” 

Accordingly, the Court denied this Article 78 petition.

 Read entire article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The New York State Civil Service Commission

The CSC exercise authority over the classified civil service of the State.

The CSC retains broad merit system oversight responsibilities for both State and local government.

The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority :The Commission promulgates rules and regulations for the classified service (this includes the Rules for the Classified Service and the Commission's Regulations).

Appellate Authority :The CSC can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission,

Investigative Authority : The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.

The CSC is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. The Governor designates one of the three Commissioners as the President of the Commission.

The CSC conducts its business during its annual schedule of eleven monthly meetings. 

The Commission Meeting Calendar lists the issues before the CSC at each monthly meeting.

1. Executive Items :

Jurisdictional: By law, classified service positions are in the competitive jurisdictional class, unless the CSC acts to approve placement outside of the competitive class. CSC resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State.

Text Amendments:The CSC can amend the text of the Rules for the Classified Service, Attendance   Rules and the Regulations of the State CSC (Commission's Regulations).

2. Staffing Services : The Civil Service Law allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. CSC approval

      is required to extend these leaves beyond the original two-year period.

3. Reinstatements : Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Beyond one year from the resignation date, reinstatement requires Commission approval.

4.      The Testing Program:

      Committee on Appeals: The Establishment of Rating Keys for Written Tests.

      Two members of the CSC act as Chairpersons of the Committee(s) on Appeals.The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. CSC approve final rating keys, eligible lists can be established.

      The CSC examines proposed changes to the text of municipal civil service rules and proposed changes to the rules.

      RSSL § 211 authorizes the State CSC to waive the § 212 income limitations. A § 211 waiver enables a retiree to accept a full-time government job without compromising the pension benefit earned from prior service

5 . Extensions in Service Over Age Seventy (Superannuation Retirement): Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office.

6.   Appeals: Aggrieved individuals can appeal departmental actions to the CSC, Appeals from Determinations of the Staffing Services Division , Candidate Disqualification, Appeals from Determinations of the Testing Services Division, Appeals from Determinations of the Director of the Division of Classification and Compensation, Appeals from Determinations of the Employee Health Service Regarding Eligibility under the CSL § 55 (b)(c) Programs & Appeals Regarding Disability Leaves and Reinstatement Issues, a) Reinstatement after Separation for Disability under Workers' Compensation (CSL § 71 b) Leave for Ordinary Disability (CSL § 72 c) Separation for Ordinary Disability; Reinstatement (CSL § 73) d) Employee Disciplinary Proceedings (CSL § 75 and § 76)

7          Merit Awards: State worker or retiree is eligible to submit ideas through the Employee Suggestion Program.

            Suggestions recommended for an award, is approved by CSC. Awards can range from a Certificate of Merit     to payments totaling $50,000

      8    Conferences : Parties with business before the CSC can request a Conference with the Commission.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

NYC Human Resources Administration v. Barnes

 This Office of Administrative Trials and Hearings (OATH) case was decided by ALJ Alessandra Zorgniotti on November 15, 2007.   Human Resources Administration (HRA) filed charges under Section 75 of the Civil Service Law against the respondent Barnes. Ms. Barnes had been involuntarily committed by her son and did not appear at the hearing. 

The issue was whether the misconduct which resulted in charges being filed by HRA against Ms. Barnes was the result of a mental disability.  Trial testimony revealed that after the death of her child’s father and her mother Ms. Barnes behavior took a radical turn for the worse.  Respondent had been previously described as “warm; soft spoken and respectful.” 

The Court held that the evidence proved that the misconduct was the result of a mental disability and that HRA should have filed an action under Section 72 of the Civil Service Law rather than Section 75. Finally, the ALJ held that OATH could not convert a disciplinary hearing to a disability hearing  in the respondent’s absence but left HRA the option to proceed under Section 72 for a disability leave. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Curtis Marshall v. Martin Horn

Index No.: 100879/07   SUPREME COURT, NEW YORK COUNTY

 In this Article 78 proceeding, Petitioner sought a judgment annulling the determination of Mr. Martin Horn, which terminated his employment as a correction officer. Respondent sought to dismiss the petition for failure to state a cause of action.  

Petitioner was a probationary correction officer with DOC. He stopped at a local bodega and bought a straight edge razor in order to make an opening inside the stitched area of the upper left side of his new regulation shirt so that he could affix his shield to the shirt. After using the razor, Mr. Marshall placed it in a small plastic container which he put in his gym bag. He then reported to work to begin his 7:OO a.m. to 3:OO p.m. tour of duty.

Upon entering his work site, Petitioner placed his gym bag on the x-ray scanner and proceeded to walk through security.  The correction officer manning the security post, noticed the razor in Petitioner’s gym bag and instructed him to put it in the amnesty box outside. The officer on dutyinformed Petitioner that she would have to report the incident.

 After being transferred to a different assignment the Petitioner was terminated from his position.

Petitioner then commenced this Article 78 proceeding by the filing a notice of petition and

verified petition on January 19,2007, challenging DOC’S determination that he be discharged on the

grounds that DOC’S actions were arbitrary, capricious and made in bad faith.

Petitioner asserts in his petition that DOC’S decision to terminate him for mistakenly placing the razor in the gun box instead of the amnesty box lacked a rational basis because his

 “unfamiliarity with the amnesty box does not violate any rule or regulation and the only directive pertaining to amnesty boxes makes clear that it exists for individuals visitingthe correction facilities.”

The Court wrote that :

“Inasmuch as the petition fails to “allege evidentiary facts suggesting that the dismissal was motivated by an improper purpose or bad faith,” the petition must be dismissed for failure to state a cause of action.

The cross motion to dismiss the petition was granted.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The New York State Civil Service Commission

The CSC exercise authority over the classified civil service of the State.

The CSC retains broad merit system oversight responsibilities for both State and local government.

The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority :The Commission promulgates rules and regulations for the classified service (this includes the Rules for the Classified Service and the Commission's Regulations).

Appellate Authority :The CSC can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission,

Investigative Authority : The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.

The CSC is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. The Governor designates one of the three Commissioners as the President of the Commission.

The CSC conducts its business during its annual schedule of eleven monthly meetings. 

The Commission Meeting Calendar lists the issues before the CSC at each monthly meeting.

1. Executive Items :

Jurisdictional: By law, classified service positions are in the competitive jurisdictional class, unless the CSC acts to approve placement outside of the competitive class. CSC resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State.

Text Amendments:The CSC can amend the text of the Rules for the Classified Service, Attendance   Rules and the Regulations of the State CSC (Commission's Regulations).

2. Staffing Services : The Civil Service Law allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. CSC approval

      is required to extend these leaves beyond the original two-year period.

3. Reinstatements : Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Beyond one year from the resignation date, reinstatement requires Commission approval.

4.      The Testing Program:

      Committee on Appeals: The Establishment of Rating Keys for Written Tests.

      Two members of the CSC act as Chairpersons of the Committee(s) on Appeals.The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. CSC approve final rating keys, eligible lists can be established.

      The CSC examines proposed changes to the text of municipal civil service rules and proposed changes to the rules.

      RSSL § 211 authorizes the State CSC to waive the § 212 income limitations. A § 211 waiver enables a retiree to accept a full-time government job without compromising the pension benefit earned from prior service

5 . Extensions in Service Over Age Seventy (Superannuation Retirement): Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office.

6.   Appeals: Aggrieved individuals can appeal departmental actions to the CSC, Appeals from Determinations of the Staffing Services Division , Candidate Disqualification, Appeals from Determinations of the Testing Services Division, Appeals from Determinations of the Director of the Division of Classification and Compensation, Appeals from Determinations of the Employee Health Service Regarding Eligibility under the CSL § 55 (b)(c) Programs & Appeals Regarding Disability Leaves and Reinstatement Issues, a) Reinstatement after Separation for Disability under Workers' Compensation (CSL § 71 b) Leave for Ordinary Disability (CSL § 72 c) Separation for Ordinary Disability; Reinstatement (CSL § 73) d) Employee Disciplinary Proceedings (CSL § 75 and § 76)

7          Merit Awards: State worker or retiree is eligible to submit ideas through the Employee Suggestion Program.

            Suggestions recommended for an award, is approved by CSC. Awards can range from a Certificate of Merit     to payments totaling $50,000

      8    Conferences : Parties with business before the CSC can request a Conference with the Commission.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Angarano v. Harrison Cent. School Dist. (Special Term, Westchester County)

Petitioner was a probationary employee of Respondent School District.  During his probationary period, Petitioner was accused of sexual harassment by two co-workers and subsequently terminated based on Respondents’ findings during the investigation of the sexual harassment claims.  Petitioner sought reinstatement claiming that Respondents’ decision to terminate him was in bad faith because it was not based on the sexual harassment claims, but, instead, those claims were solicited and used as a pretext for respondent to terminate Petitioner.  The Court found for Respondents, but never reached the merits of the case.  Instead, it dismissed Petitioner’s claim for failure to file a notice of claim to the School District within the appropriate three month time period.  While not deciding the case on the issue of whether termination was proper, the court discussed that issue and reasoned Respondents’ decision was based in good faith and neither arbitrary nor capricious, so still would be upheld.

The Harrison Central School District website is

www.harrisoncsd.org/

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Matter of Eck v. County of Del. (App Div Third Dept)

A deputy Sheriff was terminated after it was found that he had engaged in an off-duty investigation of another employee and his ex-wife.  Petitioner brought an Article 78 appeal for reinstatement.  Termination was upheld as proper.  It was determined that there was sufficient evidence to show that he used his position to conduct the surveillance and his conduct amounted to conduct unbecoming of  a County employee.

• Email This
• Print
• Comments
• Trackbacks
• Share Link