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Employee reinstated with back pay following termination pursuant to Section 73 of the Civil Service Law

Employee reinstated with back pay following termination pursuant to Section 73 of the Civil Service Law
Matter of Hoover v County of Broome, 2009 NY Slip Op 51563(U), Decided on July 21, 2009, Supreme Court, Broome County, Judge Phillip R. Rumsey, [Not to be published in the Official Reports]

Keith Hoover filed an Article 78 petition seeking a court order annulling Broome County?s decision to terminate his employment ?pursuant to Civil Service Law §73.?

§73 give an appointing authority discretion to terminate an individual who has been placed on leave pursuant to Civil Service Law §72, i.e., on leave of absence from the individual?s position because of an injury or disease that is not job related and who has been ?continuously absent? from and unable to perform the duties of his or her position for one year or more by reason of such a disability.

In contrast, an employee who is absent from work due to a disability resulting from occupational injury or disease as defined in the workers' compensation law is placed on leave pursuant to §71 of the Civil Service Law ? i.e. Workers? Compensation Leave.

In this action Hoover complained that the County violated his right to administrative due process rights because it failed to give him with a pre-termination hearing ?or to apprise him of his entitlement to a post-termination hearing to contest his dismissal.?*

Judge Rumsey ruled that Broome County?s action violated Hoover?s right to administrative process and annulled his termination ?without prejudice to the right [the County] may have to hereafter seek termination of [Hoover?s] employment under that provision of law in accordance with [Hoover?s] due process rights.**

Broome County was directed to reinstate Hoover ?to the position he held as an employee of Broome County on January 7, 2008, and to pay any salary and employment benefits that may be due him.?

NYPPL Comment: Section 72 of the Civil Service Law essentially provides that an individual may not be place of such leave until a number of administrative steps in the nature of due process have been followed except in situations where there may be an immediate danger to the individual, the individual?s co-workers or the public if the individual is not summarily placed on such leave [see Section 72.5].

After the individual is placed on "Section 72 leave," Section 73 permits, but does not required, the appointing authority to terminate the individual after he or she has been continuously absent for one year or longer pursuant to Section 73 of the Civil Service Law.

In contrast, in a Section 71 [Workers? Compensation Leave] situation, the individual typically places himself or herself on such leave because he or she cannot, or does not, report to work because of an occupational injury or disease and such occupational injury or disease is not of a permanent nature with respect to his or her resuming the duties of the position.

In a Section 71 situation, the appointing authority may, but is not required to, terminate an individual after the individual has been on Workers? Compensation Leave for a cumulative period of one year or longer except that an individual on such leave because he or she suffered a disability resulting from an assault sustained in the course of his or her employment is entitled to a cumulative leave of absence for at least two years.

* Terminating an employee pursuant to either Civil Service Law Section 71 or 73 does not constitute a separation from employment in the nature of discipline. The individual so terminated is entitled to reinstatement to his or her former position, or placement on a preferred list, depending on circumstances, in the event he or she applies for reinstatement within one year following the termination of the relevant disability or disease.

** It is unclear from the decision whether Hoover was on leave due a work-related injury of disease [a Section 71 leave for disability] or a non-work-related injury [a Section 72 leave for disability] as there is reference to his having filed a claim Workers? Compensation benefits in connection with his being absent from work.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_51563.htm

Full post as published by New York Public Personnel Law on July 23, 2009 (boomark / email).