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Appointing authority not required to give its former employee a reason for denying his or her application for reinstatement

Appointing authority not required to give its former employee a reason for denying his or her application for reinstatement
Salas v New York City Police Dept., 2009 NY Slip Op 04705, Decided on June 9, 2009, Appellate Division, First Department

Eddie Salas a New York City police officer, resigned from his position on the eve of a departmental hearing scheduled to address allegations that he refused to obey a superior?s order to arrest a sleeping homeless person. He subsequently asked to be reinstated to his position but his request was denied.

Contending that the Department?s refusal to reinstate him as a police officer was arbitrary and capricious, Salas filed a petition seeking a court order directing the Department to approve his application for reinstatement.

Among the arguments advanced by Salas in support of his claim that the Department?s decision not to reinstate him was arbitrary and capricious were the following: [1] his arresting a sleeping homeless person would have been unlawful, [2] he was not given proper notice or time to prepare for a hearing, and [3] was not given an opportunity to undergo medical and psychological tests.

The Appellate Division decided that Salas? petition itself set out ?a rational basis for the [Department?s] determination not to reinstate [him to his former position], namely, his resignation in the face of departmental charges.*

Further, said the court, Salas should have challenged the issue of the lawfulness of the arrest he refused to make, and the merits of the resulting charges against him, at the departmental hearing. As to his claim that he did not have proper notice or time to prepare for the hearing, the court commented that his attorney could have appeared on his behalf and raised these issues before the administrative tribunal.

Dismissing his appeal, the Appellate Division noted that the Department was not required to state a reason for denying Salas reinstatement to his former police officer position.

* §50.4(e) of the Civil Service Law, in pertinent part, provides that the State Civil Service Department or a municipal civil service commission ?may refuse to examine an applicant, or after examination to certify an eligible who has ? has resigned from ? a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation ... resulted from his incompetency or misconduct?.? Further, 4 NYCRR 5.3(b) provides, in relevant part, that ?... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.? Many local commissions have adopted a similar rule.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04705.htm

Full post as published by New York Public Personnel Law on June 17, 2009 (boomark / email).