Labor & Employment Law

Robert David Kirk was charged with various instances of professional misconduct by the Bureau of Professional Medical Conduct. In the course of the proceeding that followed, Kirk ?signed and consented to the entry of an agreement and order? as a final disposition of all charges pending against him.

In what the Appellate Division characterized as ?almost immediately,? Kirk wrote a letter to the Bureau claiming that he was under duress when he consented to the terms of the agreement and wished to withdraw it. His efforts to reopen the matter was rejected because ? the Bureau had adopted the consent agreement and issued a final consent order which effectively terminated the proceedings that were pending against him.?

Kirk then filed an Article 78 petition seeking a court order allowing him to withdraw his consent to the agreement.

The Appellate Division dismissed Kirk?s petition, holding that Kirk was ?without power to undertake any further review of the consent order or the proceedings that resulted in the entry of the consent order.?

The decision states that ?[b]ecause [Kirk] consented to the entry of this order, [he] is not an aggrieved party and cannot initiate a proceeding that seeks to challenge any of its terms or conditions.

Kirk contended that he was forced to accept the terms of the order and that he signed it under duress. Were that the case, his remedy would be filing "an application to set aside the consent order, the denial of which would be subject to judicial review.

Here however, although Kirk?s initial letter to the Bureau claimed that he signed the agreement under duress and stated that he would "outline the details of [his] claim shortly after obtaining counsel, his next letter to the Bureau failed to set forth any facts upon which he based his claim of duress but, as worded, merely stated that he was "formally restat[ing his] desire to withdraw [his] consent."

Rejecting Kirk?s claim to the contrary, the Appellate Division concluded that Kirk, although represented by an attorney throughout the proceedings, failed to move to vacate the consent order ?in proper form to the appropriate authority.?

In Wilson v Jackson, 555 NYS2d 429, a Section 75 disciplinary action was discontinued when Wilson, who was represented by counsel at the time, agreed to a stipulation of settlement which, in part, provided that she waived her rights to any hearing concerning allegations that she violated any of the provisions of the stipulation. Wilson was subsequently terminated "for having violated a provision of the stipulation,? and she appealed. The Appellate Division upheld her dismissal despite the fact that she was not given a pre-termination Section 75 hearing.

The court said that Wilson was not entitled to a hearing as she had waived all such rights when she agreed to the terms of the settlement. The opinion notes that "[p]rovided the waiver is freely, knowingly, and openly arrived at, without taint of coercion or duress, a party may, by stipulation, waive her right to the procedural due process to which she is otherwise entitled under New York State Civil Service Law."

Sometimes a resignation is claimed to have been coerced from an employee or obtained from the employee under duress.

The courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [see Rychlick v Coughlin, 63 NY2d 643]. Rychlick had argued that he had been coerced into resigning when the appointing authority told him that it would file disciplinary charges against him if he did not immediately submit his resignation.

Posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00075.htm

Full post as published by New York Public Personnel Law on January 15, 2009 (boomark / email).