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

In the Matter of Jerome Skrine v New York City Department/ Board of Education

Petitioner brought this Article 78 proceeding to seek to compel Respondents to accept the revocation of his resignation.

On October 31, 2008, Petitioner resigned from his position as a tenured special education teacher. In a letter dated June 10, 2010, Petitioner stated that he wanted to revoke his resignation. However, the Board of Education refused verbally. Petitioner went on to admit that he resigned in October 2008 while there were disciplinary charges that were pending against him and the Board of Education did not grant him his due process.

Petitioner also maintained that this Article 78 proceeding is timely because “…the statue of limitations runs from the rejection of the revocation itself, which occurred in June 2010.” Under the Chancellor Regulation C-205(28), Petitioner claimed that he allowed “…to revoke his resignation within five years of the resignation, BOE is mandated to accept the revocation.”

The Court ruled that Petitioner’s action to revoke his resignation in October 2008 was barred by the four month status of limitations. Therefore, any claims Petitioner made after March 2009 was barred.

The court decided to grants the Respondent’s cross motion to dismiss on the ground that the statue of limitations expired and for failure to state a cause of action was granted. The petition was denied and the proceeding was dismissed.

Read more about this Article 78 case here.

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

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Court Confirms Petitioner’s Termination for Misconduct.

Matter of Gibbons v. New York Unified Ct. Sys., Off. of Ct. Admin.

In this Article 78 case, Petitioner, Grace Gibbons, sought review of Respondent’s decision that found her guilty of incompetence and misconduct and terminated her employment.

Gibbons was a court reporter for the District Court in Nassau County for approximately 22 years. In May 2007, Respondent served Gibbons with a notice of disciplinary charges. At the hearing, the Office of Court Administration (OCA) stated that Petitioner was insubordinate to supervisors and a District Court Judge, failed to produce transcripts in a timely matter, and was excessively absent without sufficient notice, which left the District Court short notice to find a replacement.

In December 2008, the hearing officer recommended that Petitioner be terminated from his position. A few months later, on February 4, 2009, the Deputy Chief Administrative Judge found the Petitioner guilty of the misconduct and incompetent in at least 20 specifications. Thereafter, Gibbons was terminated.

In an Article 78 proceeding, the Appellate review is limited to whether that determination was supported by substantial evidence. Substantial evidence is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” and “[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists.”

The Appellate Division found that the decision was supported by substantial evidence and the penalty of termination did not shock one’s sense of fairness.

The determination was confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Read more about this Article 78 case here.

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Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

In the Matter of Stephen C. Caruana v. Thomas P. DiNapoli, as Comptroller of the State of New York, et al..

Petitioner, Stephen C. Caruana, sought to review a decision of Respondent which denied his application for accidental disability retirement benefits.

In March 2006, Petitioner, a police officer, applied for accidental disability retirement benefits. Caruana claimed that he was permanently incapacitated due to neck and back injuries that were a result of three work-related incidents. Initially, his application was denied and petitioner requested a redetermination, therefore, a hearing was held. The Hearing Officer concluded that Petitioner “…failed to establish that such incapacity was caused by either 1987 incident or the 2003 incident, resulting in the denial of his application, an Article 78 followed.

The Appellate Division stated that the Petitioner has the burden of proving that his injuries were the results of the alleged incidents and in deciding whether Petitioner has fulfilled this burden, Respondent is entitled to produce “…conflicting medical evidence and to credit the opinion of one expert…” over the other.

In 2007, Petitioner had an orthopedic surgeon perform a spinal fusion surgery who agreed that Caruana condition was related to the 1987 incident and a chiropractor who agreed that his disability is related to the 1987 and 2003 incidents. Respondents brought in a board certified surgeon, Austin Leve, to examine Petitioner and review his medical records in August 2006. Leve concluded that Caruana’s injuries were not significant enough of an injury to permanently incapacitate him.

The court concluded that Respondent’s decision was supported by substantial evidence. Therefore the decision was confirmed, without costs and the petition is dismissed.

Read more about this Article 78 case here.

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In the Matter of Thomas Hughes v. New York Unified Court System, Office of Court Administration.

Pursuant to Article 78, Thomas Hughes, Petitioner, sought to review a decision of Respondent which adopted the recommendation of a hearing officer, who found that “…the petitioner engaged in acts of misconduct and incompetency prejudicial to the good or and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court officer…,” which resulted in his termination.

In February, 2007, Respondents filed administrative charges against Petitioner. Hughes requested a hearing, where a hearing officer found that Petitioner had accelerated his vehicle “...while it was in close proximity to his supervisor as the supervisor was entering a crosswalk, reported late for duty several times, was repeatedly insubordinate to several supervisors, failed to keep his uniform in proper condition, failed to keep his weapon properly loaded, and kept an impermissible metal-jacketed round in his weapon, which was capable of piercing courthouse walls.

In October of the next year, the Office of Court Administration ordered that Petitioner be terminated from his position. By February, 2009, Hughes filed this appeal. According the Appellate Division, an administrative decision made after a hearing mandated by law is limited to whether that decision is supported by substantial evidence. Substantial evidence “…relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact…”

The court concluded that the decision was support was substantial evidence and that the penalty of termination of employment is not disproportionate to the misconduct as to shock the conscience.

The petition was denied and the proceeding was dismissed with costs.

Read more about this Article 78 case here.

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

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In the Matter of Kyle P. McDonell v New York State Department of Motor Vehicles, et al.

In this Article 78 proceeding, petitioner asked the court to review a determination suspending his license for refusal to submit to a chemical test.

McDonell was stopped by a NYS Trooper because he accelerated while turning onto an entrance ramp for an interstate highway causing his vehicle to fishtail. The Trooper’s sole basis for stopping McDonell was his belief that McDonell violated VTL § 1162. This law forbids dangerously moving a stopped, standing or parked vehicle unless it can be made with safety. Petitioner was taken into custody because of the Trooper’s belief that the petitioner was under the influence while operating the vehicle. Soon thereafter, because the petitioner refused to submit to a chemical test, his license was suspended.

VTL § 1194 (2) (c), in a refusal revocation hearing, the law judge concluded that the Trooper lawfully arrested the petitioner. However, the court agreed with the petitioner’s contention that he had not been stopped, standing or parked before the Trooper stopped the vehicle. It was held that it was an illegal stop based on VTL § 1162.

The refusal suspension was annulled based on the improper stop.

Read more about this Article 78 case here.

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NYPD Prior Probationary Service Counts Upon Reinstatement

Ward v  Kelly

Petitioner, Michael Ward, sought to annul a decision of the NYPD, to terminate him as a Probationary Police Officer on March 11, 2009.

In July 2006, Petitioner was originally appointed as a probationary police officer. Approximately nineteen months later, Ward resigned from his position in order to join the New York City Fire Department and less than a month later, on February 13, 2008, he resigned from the Fire Department and reapplied to the NYPD on the same day.

When Petitioner reapplied to the NYPD, he was required to sign a document called “Police Officer Terms of Probation,” which states that he was informed that there will be a twenty-four month probationary period. On February 21, 2008, Ward was appointed as a Probationary Police Officer. Upon appointment, Petitioner alleges that his probationary period would only last thirty-two days because he had started his probationary period on his initial appointment into the NYPD.

In December 2008, Petitioner was arrested for assault, menacing and harassment. Eventually, the charges were dropped, but as a Probationary Police Officer, Ward was terminated from the NYPD.

Petitioner argues that his initial probationary period should have been counted towards the two year probationary period, which ended in August 2008. Therefore, this would entitle Ward to a disciplinary hearing before his termination because he was no longer a Probationary Police Officer.

According to the Personnel Rules and Regulations of the City of New York, when “…a probationary employee has been separated from service, for any reason other than fault or delinquency, and is thereafter re-appointed by the same agency, the length of his prior probationary term shall be deducted from his current probationary term.”

The petition was granted and the decision terminating petitioner was vacated and rescinded. Petitioner will also be subject to such other disciplinary procedures applicable to him as a non-probationary police officer from his December 14, 2008 arrest.

Read more about this Article 78 case here.

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Pitts II v City of New York Office of Comptroller

Pursuant to Article 78, petitioner sought the court to review a decision of the New York City Department of Health and Mental Hygiene (DOHMH) stating that he had violated New York City Health Code.

Petitioner received a violation notice from the DOHMH which cited him for violations of the New York City Health Code. A DOHMH hearing examiner determined that petitioner had two violations and he would be fined $500 total. Petitioner brought suit but failed appeal the decision prior to suit.  Due to the petitioner not exhausting all administrative remedies the Supreme Court granted DOHMH’s motion to dismiss.

The court stated that in order for a proceeding to be litigate in a court of law, petitioner must exhaust all available administrative remedies

The Supreme Court ordered that the order and judgment is affirmed, without costs or disbursements.

Read more about this Article 78 case here.

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

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Advance planning is required for those hoping to get jobs with New York City.  The Department of Citywide Administrative Services (DCAS) serves as the City's Personnel Department and writes, administers and scores the tests given for NYC jobs.  Lisa Colangelo of the New York Daily News writes about City hiring procedures in the following article. click  www.nydailynews.com/ny_local/2010/08/04/2010-08-04_for_civil_service_jobs_think_ahead.html

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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.

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This Court of Appeals case centered on whether or not issues submitted by the Civil Service Employees Association were subject to arbitration.

This the history of the case includes a report issued by the New York State Civil Service Commission in the year 2004 noting that Long Beach had poor control over its provisional appointments in the civil service. Most importantly several positions in the competitive class have been filled with provisional appointments and one had been filled provisionally for a total of 19 years.

The city determined that the provisional appointments violated Civil Service Law and terminated the employees. The CSEA filed grievances and demanded arbitration alleging that the employees were tenured.

The city brought an action to stop the arbitration. The Supreme Court granted the motion to stay the arbitration and the Appellate Division affirmed. Their reasoning behind the decision is that a provision in the Collective Bargaining Agreement to arbitrate these disputes violated Civil Service Law.

Citing Civil Service Law section 65 (1) the court found that provisional appointments are allowed when there is no eligible list available for filling a vacancy in a competitive class and then for only a maximum of nine months. Furthermore, once a provisional employee has been in a position four months the City must hold a Civil Service examination. Section 65 allows no tenure to provisional employees and the collective bargaining agreement between the city and the C. S. E.A. is meaningless in light of the Civil Service Law.

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