Labor & Employment Law

If an employee has been served with disciplinary charges, his or her right to a disciplinary hearing survives his or her retirement from the position

Matter of Blair v Horn, 2008 NY Slip Op 32581(U), September 12, 2008, Supreme Court, New York County, Docket Number: 0100105/2008, Judge: Marcy S. Friedman, This opinion is uncorrected and not selected for official publication.

Clinton Blair sued the New York City Department of Correction (DOC) after it denied his request to rescind his retirement from his position as a correction officer. Blair asked the court to direct DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement.

According to the decision, Blair was served with disciplinary charges alleging ?excessive use of sick leave.? The hearing had been scheduled for June 28, 2007, but it was postponed without a new date for the hearing being set. On June 20, 2007, Blair notified the New York City Employees Retirement System of his intent to retire. By letter dated August 15, 2007, DOC granted Blair 26 days of terminal leave with an effective date of retirement of September 27, 2007. According to Blair, his ?last day worked? was July 15, 2007.

After exhausting his compensatory and annual leave, Blair was placed on terminal leave. Blair then sent a letter dated August 31, 2007, in which he ?request[ed] permission to withdraw [his] request to retire.? DOC denied his request on the grounds that it was its position that an employee who has submitted a request to retire may withdraw the request while the employee exhausts compensatory and annual leave balances, but that DOC has discretion to deny the request if it is made while the employee is on terminal leave.

Significantly, Blair did not dispute the fact that DOC did not receive his request to withdraw his retirement until after he begun using his terminal leave.

Justice Friedman ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated [as Blair] was no longer working and remained on the payroll merely for purposes of exhausting leave that had been granted in connection with the termination.

Put another way, said the court, DOC did not abuse its discretion in interpreting its personnel rules as prohibiting an employee from withdrawing a retirement request as a matter of right after the employee had begun using terminal leave. In so holding, the court rejected Blair?s contention that DOC may not enforce its rules because he was unaware that he would require DOC approval to withdraw his retirement request.

Although the court decided that DOC?S determination denying Blair?s request to withdraw his retirement request should be upheld. it said that he was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, ?His resignation during the pendency of charges does not terminate the proceeding against him.?

Although retirement rather than resignation was the triggering event in this instance, Justice Friedman?s ruling is consistent with the provisions of 4 NYCRR 5.3(b) of the State Civil Service Commission?s Rules for employees in the classified service subject to its jurisdiction permitting the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and dismissed from the service, recording his or her separation as a dismissal rather than as a resignation and with the provisions of 4 NYCRR 5.3(c) which states that ?A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.? Many civil service commissions of political subdivisions of the State have adopted similar rules.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_32581.pdf

Full post as published by New York Public Personnel Law on October 01, 2008 (boomark / email).