Matter of Caslin v Nassau County Civ. Serv. Comm.

Petitioner brought about CPLR Article 78 concerning application for Nassau County Civil Service Commission Police Officer Examination.

Petitioner was disqualified due to “failure to meet the MPTC standard for audiology.”  The MPTC is the Municipal Training Council that sets standards for the necessary job functions for candidates of the NYPD.  In August of 2007 petitioner passed the written examination.  The petitioner then had to pursue with other tests necessary to become a Police Officer.  He was given at first the “pure tone screening” hearing test, petitioner showed impairment in the left ear at 2,000 and 3,000 Hz.  When retested both ears showed impairments at 2,000 Hz.  Because of these impairments, petitioner was then disqualified.  The problem in question is that the MPTC’s Medical and Physical Fitness Standards and Procedures for Police Officer Candidates states that a police officer candidate “shall score no poorer than 90% in quiet and 70% in noise” for resource testing.  Petitioner had passed these tests but failed the 35dB quiet test, at 68%.  This 35dB test is only found in a modification of the MPTC audiology standards that was adopted by the CSC in 2007.

The questions raised by the petitioner is whether the determination was (1) arbitrary and capricious; (2) an abuse of discretion; (3) made in violation of lawful procedure; or, (4) affected by an error of law (CPLR 7803(3)).  “The arbitrary and capricious question therefore turns on whether the CSC’s denial of the petitioner’s appeal, based upon the auditory evaluations of Dr. Richards and Dr. Bressi Hamilton, is justified.”  Dr. Richards evaluation performed does not provide enough facts to decide whether the testing was compliant with standards for the MPTC.  “Thus any administrative action based upon Dr. Richard’s report is without foundation in fact, and thus arbitrary and capricious.”  Also, Dr. Bressi Hamilton only administered one test that the petitioner failed, the 35dB sound-field speech recognition test.  This was a modification of the MPTC audiology standards, “it remains to be determined whether the CSC’s unilateral adopting, as the petitioner suggests, violated Civil Service Law 20.” Petitioner refers to Section 20, subdivision 2 that states “rules, and any modifications thereof, shall be adopted only after a public hearing . . . and shall be valid and take effect only upon approval of the state civil service commission.”  The CSC’s failure to adopt the 35dB test modification within a public hearing makes the CSC’s decision arbitrary and capricious, as all other tests given by Dr. Bressi Hamilton were passed.  The CSC does not argue this fact but states that the 35dB test “is not a “rule” but a “standard” or a “regulation”” which does not have to comply with Civil Service Law.

Law Office of Kevin P. Sheerin

The CSC’s adoption of the 35dB test in 2007 violated CSL 20(2) and “was null and void.”  Therefore the petitioner’s disqualification was “without foundation in fact and thus is arbitrary and capricious.”  The CSC’s determination was annulled, and the respondent’s are to further the remaining tests to finish the petitioner’s application for the Nassau County CSC Police Officer Examination.

I have been a civil service disqualification appeals attorney for more than 18 years. During that time I have helped many clients win their appeal. I can help you too.

If you have questions about your disqualification and would like to schedule a free consultation please feel free to contact me at 516 248 0040.

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