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Appealing a Section 75 settlement agreement

By Harvey Randall, Esq.

Appealing a Section 75 settlement agreement
Johnson v Triborough Bridge and Tunnel Auth., NYS Court of Appeals, 97 N.Y.2d 627

Edward P. Johnson, an employee of the Triborough Bridge and Tunnel Authority [TBTA], was involved in an after-hours altercation during which his service revolver discharged. As a result, disciplinary charges were filed against him pursuant to Section 75 of the Civil Service Law.

On April 12, 1989, Johnson and the TBTA settled the disciplinary action and Johnson signed a "Waiver of Section 75 Hearing and Acceptance of Recommended Penalty." The waiver included the following provisions:

1. Johnson agreed to waive his right to a disciplinary hearing pursuant to Civil Service Law Section 75 and his right to file an appeal pursuant to Civil Service Law Section 76;

2. Johnson agreed to serve a probationary period of 12 months "exclud[ing] all time during which he was not on duty;" and,

3. During this disciplinary probationary period, the TBTA, in its sole discretion, could dismiss him for any new violation of its rules or regulations.

Johnson, while serving his disciplinary probationary, was injured while on duty. As a result he was absent from work from August 19, 1989 until October 1996. In June 1997, following allegations that he had abandoned his post without authorization, TBTA dismissed Johnson without a hearing.

Johnson appealed his termination to the New York City Civil Service Commissioner, arguing that he was no longer on probation on the effective date of his dismissal. This, he contended, meant that was entitled to a hearing pursuant to Civil Service Law Section 75 before he could be terminated.

Johnson based his claim on the theory that his probationary period should be calculated in calendar days. TBTA, on the other hand, contended that the calculation should be based his workdays --only on the days Johnson actually worked, in this instance 253 days. Thus, TBTA argued, Johnson was still serving his disciplinary probation when he was dismissed.

As to Johnson's right to appeal to the City's Civil Service Commission, TBTA contended that the Commission lacked jurisdiction to hear the appeal because the settlement agreement specifically provided that Johnson waived his Section 76 rights of appeal.

The Commission agreed, dismissing Johnson's appeal on the ground that it did not have jurisdiction. The Appellate Division, however, sustained a lower court's ruling that "the Commission was bound to construe the 1989 agreement to ascertain whether the waiver therein remained effective at the time of petitioner's termination" [Johnson v TBTA, 278 AD2d 34-35]. The Court of Appeals reversed this holding.

The Court of Appeals held that Section 76 "solely authorizes the Commission to hear appeals from hearings in connection with disciplinary proceedings under section 75." As there was no such proceeding in Johnson's case, the Commission had no jurisdiction to hear his application to review his discharge that was not effected under Section 75.

The Court also commented that Section 76(2) limits the Commission's review to the record and transcript of the disciplinary hearing. As there was no record or transcript in this instance, the Commission had no jurisdiction to determine the matter.

In contrast, the Court of Appeals noted that Johnson "could have brought an Article 78 proceeding at the time of his dismissal in June 1997 challenging the TBTA's conclusion that he was a probationary employee" [emphasis supplied], which he failed to do. Accordingly, the Court held that Johnson "cannot reassert his contentions by appealing to the Commission because its jurisdiction is explicitly limited to appeals of Section 75 determinations.

Note: Typically probationary periods are automatically extended for a term equal in length to the probationer's absence during his or her probationary period. In many jurisdictions the rules allow the appointing authority, at its discretion, to deem part or all of such absence[s] "time served" as a probationer. One notable exception: a probationer who is called to active military duty is deemed to have satisfactorily served in his or her probationary period while on military leave if he or she is honorably released from military service and is subsequently timely reinstated from such leave.

Full post as published by New York Public Personnel Law on March 25, 2008 (boomark / email).