Labor & Employment Law

Agency Determination of Fitness Entitled To Deference

Bowie v. NYC Civil Service Commission, ___Misc.3d___(Queens Co. Sept. 29, 2008) demonstrates the amount of deference that is given to appointing authorities with respect to a determination of fitness to work.A correction officer sought to vacate a finding that he was psychologically unfit. In rejecting his appeal, the court applied the following standard:

An appointing authority has wide discretion in determining the fitness of candidates, which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied (see Matter of Little v County of Westchester, 36 AD3d 616 [2007]; Matter of Verme v Suffolk County Dept. of Civ.Serv., 5 AD3d 498 [2004]). As long as the administrative determination is not irrational or arbitrary, this court will not interfere with it (id. at 499, see Matter of Little v County of Westchester; Matter of Thomas v Straub, 29 AD3d 595, 596 [2006]; Winnegar v County of Suffolk, 13 AD3d 382 [2004]; Matter ofFrederick v Civil Serv. Commn. of County of Schenectady, 175 AD2d 428 [1991]).

The fact that the opinion of petitioner's privately retained psychologist is contrary to that of both the DOC?s psychologist respondent?s CSC?s psychologist is not controlling (Matter of Keryc v Nassau County of Civil Service Comm., 143 AD2d 669 [1988]). It is not for the courts to choose between diverse professional opinions (Matter of Brussel v Lo Grande, 137 AD2d 686 [1988]). Therefore, where there is any rational basis or credible evidence in support of an agency's determination, the decision will be upheld (Matter of Curcio v Nassau County Civil Service Commission, 220 AD2d 412 [1995]).

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on October 17, 2008 (boomark / email).