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Dismissal from a position because the individual does not possess a valid required license or certification is not a disciplinary termination

Dismissal from a position because the individual does not possess a valid required license or certification is not a disciplinary termination
Matter of New York State Off. of Children & Family Servs. v Lanterman, 2010 NY Slip Op 02432, Decided on March 25, 2010, Court of Appeals
[Decided with Matter of New York State Office of Alcoholism and Substance Abuse Services v Victor Ortiz]

These two cases involve State employees who were dismissed from their respective positions because they lacked the necessary licenses or credentials. Both sought to arbitrate whether their terminations constituted disciplinary actions.

Citing Matter of Felix v New York City Dept. of Citywide Admin. Servs. (3 NY3d 498 [2004]), the Court of Appeals said that ?the dismissals clearly were not disciplinary, and the employees' assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue.?

Lauren Lanterman was a teacher employed by the Office of Children and Family Services (OCFS); Victor Ortiz was a counselor employed by the Office of Alcoholism and Substance Abuse Services (OASAS). Both were members of the New York State Public Employees Federation, and their rights were governed by the same collective bargaining agreement.

Lanterman was required to have a teaching certificate appropriate to her specialty; Ortiz was required to be a Credentialed Alcoholism and Substance Abuse Counselor (CASAC). Their respective credentials expired and both failed to obtain new ones. As a result, both were terminated from their respective positions.

The Court of Appeals said that its decision in Felix was relevant in deciding these appeals. In Felix, a New York City employee was dismissed for failing to establish City residence, which was a prerequisite to his employment under a local law. Although Felix sought a hearing under Civil Service Law § 75, the Court of Appeals rejected his claim, holding that the disciplinary provisions of the Civil Service Law did not apply to him.

The court explained that "while an act of misconduct invokes Civil Service Law §75 disciplinary procedures," an employee's failure to meet a residence requirement "is separate and distinct from an act of misconduct." In other words, issues involving job performance, misconduct or incompetency are subject to Civil Service Law disciplinary procedures while meeting a qualification for continued employment in ones position is not.*

The dismissals of Lanterman and Ortiz resulted from their failure to meet qualifications of employment ? a teaching certificate in Lanterman's case, a CASAC credential in Ortiz's and thus the terminations were not disciplinary in nature.

NYPPL Comment: In situations where the appointing authority believes that the employee does not possess a valid required license, certificate or other requirement necessary to lawfully perform the duties of his or her position, providing the individual with a reasonable opportunity to produce the required credential would appear to satisfy the minimum requirements for administrative due process.

* As to requiring the possession of a license or similar credential, in Martin ex rel Lekkas, 86 AD2d 712, the Appellate Division held that only where performing the duties of the position required the incumbent to be licensed may the lack of such a license be grounds for termination. Lekkas, an Assistant Clinical Physician, did not hold a valid license to practice medicine while he was serving in a position that did not involve Lekkas? practicing medicine. However, an amendment to the Education Law required persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position prior to the amendment but he had not obtained a New York State license to practice medicine within the prescribed time period. As Lekkas? duties did not involve the practice of medicine, the Appellate Division ruled that he was not required to possess such a license.

Full post as published by New York Public Personnel Law on March 26, 2010 (boomark / email).