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Reinstatement following termination pursuant to §73 of the Civil Service Law

Reinstatement following termination pursuant to §73 of the Civil Service Law
Matter of Hoover v County of Broome, 2009 NY Slip Op 51101(U), Decided on June 2, 2009, Supreme Court, Broome County, Judge Phillip R. Rumsey [This decision will not be published in the Official Reports.]

Keith Hoover sued Broome County, seeking a court order annulling the County?s decision to ?terminate his employment? pursuant to Civil Service Law §73,* and compelling his reinstatement with back salary and employment benefits.

Although not so stated in the decision, it appears that Hoover had placed himself on leave pursuant to Civil Service Law §72 as a result of his alleged being subjected to retaliatory harassment by co-workers that ?forced him to take a leave of absence from his position? effective January 2, 2007.**

Judge Rumsey stated that Broome County ?terminated [Hoover?s] employment pursuant to Civil [Service] Law §73, which permits an employer to discharge an employee who ?has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law.?"

Hoover?s petition contended that Broome?s action violated his right to due process because it ?failed to apprise him of his right to a pre-termination opportunity to be heard.? Hoover also maintained that he was entitled ?to a post-termination hearing to contest his dismissal.?

Although Judge Rumsey granted Hoover?s petition on procedural grounds for the purpose of further litigation before the court, Judge Rumsey also noted that Hoover conceded that "I have been unable to return to the job and, as a result of the same, I was terminated in January 2008 by the Sheriff, who claims that such termination is pursuant to policies, rules, or regulations."

In another action involving the same parties, a federal district court judge discussed and rejected Hoover?s claim that his separation constituted a ?constructive discharge.?***

Indeed, the action taken by Broome County was not in the nature of a ?dismissal? or ?discharge? in a disciplinary sense, not did it constitute a ?constructive discharge.?

Rather, §73 of the Civil Service Law, separation for ordinary disability while on leave pursuant to §72, provides that an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability may be terminated and his position may be filled by a permanent appointment.?

However the employee, within one year after the termination of his or her disability [rather then one year after his or her termination from his or her §72 leave], may apply to the civil service department or municipal commission having jurisdiction over the position for a medical examination to be conducted by its designated medical officer.

If the medical officer certifies that the individual is physically and mentally fit to perform the duties of his or her former position, the individual is to be reinstated to the position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field in his or her former department or agency.

If no appropriate vacancy then exists, the name of such person is placed on a preferred list and he or she is eligible for reinstatement in his or her former department or agency from such preferred list for a period of four years.

Thus, unlike a disciplinary termination, the individual terminated from §72 leave pursuant to §73 retains significant reemployment rights to his or her former position.

As Hoover stated that he was ?unable to return to the job? ? which resulted his being terminated pursuant to §73 of the Civil Service Law in January 2008 ? he may, within one year after his disability ends, apply to the civil service commission having jurisdiction, in this instance the Broome County Department of Personnel, for a medical examination by a physician designated by it. If certified to perform the duties of his former position, such certification will trigger his rights for reinstatement set out in §73.

* Such ?termination? does not constitute ?dismissal? from the position as the individual is entitled to reinstatement to his or her former position, or a comparable one, as well as other benefits if a suitable position is not available, in the event he or she is subsequently certified as medically qualified to perform the duties of the position.

** §71 of the Civil Service Law provides for leaves required as a result of a job-related injury or illness and therein provides for the removal of the individual from the position at the discretion of the appointing authority after the minimum period of such leave required by law. §72 provides for leave required as a result on an injury or illness that is not job-related and the appointing officer, as a matter of discretion, may remove the individual from the position after the minimum period of such leave required by law pursuant to §73.

*** See Matter of Hoover, 2008 WL 1777444

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_51101.htm

Full post as published by New York Public Personnel Law on June 09, 2009 (boomark / email).