Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Termination resulting from the loss or expiration of a license required to lawfully perform the duties of the position does not constitute discipline

Termination resulting from the loss or expiration of a license required to lawfully perform the duties of the position does not constitute discipline
Matter of Carr v New York State Dept. of Transp., 2010 NY Slip Op 00771, Decided on February 4, 2010, Appellate Division, Third Department

James Carr, a New York State Department of Transportation Highway Maintenance Worker I, was required to possess a valid commercial driver?s license [CDL] to lawfully perform the duties of his position.

Carr?s CDL was revoked due to an alcohol-related driving offense that occurred while he was off-duty. As a result Carr was terminated from his position for failing to possess a minimum qualification of his position.*

Claiming the Carr was entitled to a pretermination hearing in accordance with the disciplinary procedure set out in Article 33 of the collective bargaining agreement between the State and CSEA, CSEA filed an Article 78 proceeding challenging Carr?s termination on the grounds that it was arbitrary and capricious and violated his due process rights under the US Constitution and the CBA.

Supreme Court dismissed the petition and the Appellate Division affirmed the lower court?s ruling.

Article 33 of the CBA, said the court, sets forth a disciplinary procedure applicable to employee incompetency or misconduct and in lieu of the procedure specified in Civil Service Law §75.** Although CSEA contended that Carr?s loss of the required CDL rendered him "incompetent" to perform the duties of his position and thus the disciplinary provisions of Article 33 applied, the court disagreed.

Citing Matter of Felix v New York City Dept. of Administrative Services, 3 NY3d 498, the Appellate Division noted that the Court of Appeals recognized a distinction between termination for misconduct ? dereliction in the performance of one's job ? and termination for failing to possess a minimum qualification of employment, which has no relation to competency, misconduct or job performance. As the Court of Appeals said in Felix, ?Whereas "an act of misconduct invokes Civil Service Law §75 disciplinary procedures," an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it.?

The Appellate Division concluded that Carr?s failure to hold a valid CDL was not a disciplinary matte. Rather the loss of the license render him unqualified for the position of highway maintenance worker*** ?based upon his off-duty conduct, which is unrelated to any deficient job-related performance, misconduct or lack of competency on his part."

* The Appellate Division noted that prior to his termination, the Department sent Carr a letter indicating its belief that he no longer possessed a minimum qualification of his position and afforded him the opportunity to present documentation establishing that he maintained a valid CDL. This, said the court, provided Carr with his rights to administrative due process.

** §76.4 of the Civil Service Law provides, in pertinent part, §§75 and 76 of the Civil Service Law ?may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen [The Taylor Law] of this chapter.?

*** In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lakkas the court held that an individual?s failure to possess a valid license is not fatal to the employee?s continuation in service if he or she is not performing duties for which the license is required.

Full post as published by New York Public Personnel Law on February 08, 2010 (boomark / email).