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.
Adam R. Duchinsky v. Nicholas Scoppetta, Fire Commissioner of the City of New York, and The City of New York
This Article 78 case was brought about by Petitioner, Adam Duchinsky to challenge his termination and seek reinstatement as a probationary firefighter with the Fire Department of the City of New York. Petitioner was hired as a “provisional” EMS-EMT for the FDNY in 2006. Prior to being hired he disclosed that in 2000 he sustained an injury to his left knee and undergone arthroscopic surgery to repair the damage. In March 2007, Petitioner resigned from this position and became employed as a “probationary” firefighter. Again, Petitioner disclosed his previous injury and subsequent surgery.
Petitioner sustained an injury to his right knee during training in April of 2007, returned to work after a short medical leave but then was placed on light duty due to pain until mid-July. In August of 2007, Petitioner injured his left knee in another training exercise. This injury led to Petitioner’s termination as a probationary firefighter less than a month later. Petitioner then submitted this Article 78 to review the termination under the “arbitrary and capricious” standard.
Prior to his termination date, on August 23, 2007, Petitioner’s doctor, Dr. Levy, wrote a note that stated there was no reason that Petitioner couldn’t perform his duties once his knee sprain healed, that his previous injury was in no way related to the more recent one, and that he should be able to “complete a full career if at least twenty years as a New York City firefighter”. This doctor’s note is significant because it included an MRI that showed “no problems” and the Bureau of Health Services doctor, Dr. Kelly, never mentioned this information in his determination that Petitioner was “medically unqualified to perform the duties of a probationary firefighter”. Since Dr. Kelly relied heavily on the operative report for Petitioner’s 2000 surgery performed by Dr. Levy, logically he should place equal value on the August 23 Doctor’s Note.
Accordingly, the Supreme Court ordered Respondents to deliver to the court affidavits and other evidence to prove when the August 23 Doctor’s Note was received and whether and by whom it was considered prior to Petitioner’s termination.
The following was originally posted at Public Personnel Blog of Harvey Randall, Esq.
Disqualifying an applicant for appointment by a civil service commission
Matter of Murray v County of Nassau Civil Service Commission, 2007 NY Slip Op 50927(U), Supreme Court, Nassau County, James P. McCormack, J.
The Nassau Civil Service Commission disqualified Sandor Murray for employment as a Nassau County Police Officer. The Commission based its determination of Murray’s alleged failure to meet the “psychological requirement of the position.”
Murray, claiming that the Commission “acted in an arbitrary and capricious manner” when it disqualified him for appointment as a police office, filed an Article 78 petition seeking a court order directing his appointment as a Nassau County Police Officer.
Judge McCormack dismissed Murray’s petition, holding that the Commission’s decision was not irrational. Indeed, said the court, its determination is “supported by substantial evidence.” In addition, Judge McCormack found that the Commission had complied with New York Civil Service Law Section 50(4) when it considered whether Murray should be disqualified for appointment as a police officer. *
According to the decision, the standard for judicial review of an administrative determination pursuant to CPLR Article 78 is limited to an inquiry into whether the agency acted arbitrarily and, or, capriciously.
Noting that a civil service commission has wide discretion in determining the fitness of candidates, Judge McCormack, citing Verne v. Suffolk County Department of Civil Service, 5 AD2d 498 and Needleman v. County of Rockland, 270 AD2d 4, said that the exercise of such discretion “is particularly broad in the hiring of persons for position in law enforcement, to whom high standards must be applied.”
The decision points out that although Murray’s medical expert’s opinion differed from that of the Commission’s medical expert, “[i]t is not for the courts to choose between diverse professional opinions.”
Thus, said the court, “where there is any rational basis or credible evidence in support of an agency’s determination,” the administrative decision will be upheld (see Matter of Curcio v. Nassau County Civil Service Commission, 220 AD2d 412).
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*Section 54.4, in pertinent part, provides: No person shall be disqualified pursuant tothis subdivision unless he [or she] has been given a written statement of the reasonstherefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.
