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Dismissed worker terminated after §75 hearing held in absentia for being AWOL due to incarceration ordered reinstated following acquittal of charges

Dismissed worker terminated after §75 hearing held in absentia for being AWOL due to incarceration ordered reinstated following acquittal of charges
Silberzweig v Doherty, 23 Misc 3d 618*

As framed by New York State Supreme Court Justice Alice Schlesinger, ?This CPLR Article 78 proceeding commenced by Matthew Silberzweig, a former employee of the Department of Sanitation, against the Sanitation Commissioner presents an "interesting" question:

"Was it arbitrary and capricious and/or an abuse of discretion for the Commissioner to deny Silberzweig's application for reinstatement to employment, when Silberzweig was discharged based on his absence from work without leave (AWOL) due to an arrest, and he was subsequently acquitted of all charges related to the arrest??

Ultimately Justice Schlesinger held that it was arbitrary and capricious for the public employer not to reinstatement him to his former position, reasoning that denying Silberzweig reinstatement was unlawful because it contravenes the statutory prohibition in Civil Service Law §75 and [New York City?s] Administrative Code §16-106 against disciplining a covered employee absent misconduct.

In addition the court awarded Doherty back pay effective February 27, 2008, the date of his application for reinstatement to the Department.

Concerning the issue of termination based on AWOL ... in a Silberzweig type case the defense of "impossibility of performance" would appear to be reasonable, if not compelling. In any event, assuming the individual was entitled to "administrative due process" as a condition precedent to dismissal, he or she should not be tried in absentia as the appointing authority would be aware of the reason for his or her failure to appear at the disciplinary hearing. Thus any disciplinary action would have to await the individual's release from custody.

Further, while incarcerated the individual could be retained on the payroll if he or she elected to have his or her absence charged to available leave credits. Once such credits are exhausted, however, the individual could be placed on leave without pay so long as he or she continues to be unavailable due to incarceration or otherwise restricted to a particular location by court order.

As to reinstatement, Section 30.1(e) of the Public Officers Law provides some insights regarding this type of situation insofar as a public officer is concerned.

A "reinstatement hearing" is available in the event a public officer is removed from his or her position pursuant to Section 30.1 (e) of the Public Officers Law upon the officer's conviction of a felony or a crime involving a violation of the officer's oath of office and the conviction is later reversed "where the conviction is the sole basis" for the termination.

It could be argued that it would be arbitrary and capricious for the appointing authority not to provide an administrative hearing in situations such as described in the Silberzweig case.

However, providing such a hearing does not imply that the individual is entitled to reinstatement as there could be viable reasons supporting the appointing authority's decision not to reinstate the individual to his or her former position set out in the record of such a hearing.

* On January 12, 2010, the Appellate Division, First Department granted the City?s motion seeking additional time to perfect its appeal and ?enlarged to the May 2010 Term? [Motion No. M-5652].

Full post as published by New York Public Personnel Law on February 04, 2010 (boomark / email).