Opinion
5789-11
03-14-2012
In the Matter of the Application of Brian Lutz, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Steven Krokoff, in his capacity as Chief of Police of the City of Albany Police Department, City of Albany nd Albany Police Department, Defendants.
The New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO Ennio J. Corsi, Esq., General Counsel Attorneys for the Petitioner By: Christine Caputo Granich, Esq. Associate General Counsel Roemer, Wallens Gold & Mineaux, LLP Attorneys for Respondents By: Mary M. Roach, Esq.
The New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO
Ennio J. Corsi, Esq., General Counsel
Attorneys for the Petitioner
By: Christine Caputo Granich, Esq.
Associate General Counsel
Roemer, Wallens Gold & Mineaux, LLP
Attorneys for Respondents
By: Mary M. Roach, Esq.
, J.
The petitioner began working as a police officer in the patrol division for the respondent City of Albany in June 2008. On December 11, 2010, while off duty, he was arrested and charged with violating Vehicle and Traffic Law §1192(3) (Driving While Intoxicated). Because petitioner refused to take a chemical test, the Department of Motor Vehicles revoked his driver's license (art 3a 12a vtl).
On April 8, 2011, the respondent Steven Krokoff, the Chief of Police, wrote to petitioner to advise that he was aware that petitioner's license had been revoked. Further, he wrote that "it is a minimum qualification for Police Officer in the City of Albany to maintain a valid driver's license"; but that he was, "willing to afford [petitioner] the opportunity to present ...written documentation regarding the status of [his] license...on or before April 25, 2011. Upon presentation of such information, your status will be reviewed and an appropriate determination made". On April 25, 2011 petitioner reported to the Chief that his driver's license was, "currently suspended pending prosecution and revoked for refusal to submit to a chemical test as of April 8, 2011" .By correspondence dated May 3, 2011, Chief Krokoff terminated the petitioner, "effective immediately" explaining:
In the letter, petitioner asserts that he is "reserving all of [his] rights under the collective bargaining agreement" but he does not provide a copy of such agreement. Whether this dispute is arbitrable is not before the Court (compare, Lanterman; Matter of Jandrew v. County of Cortland, 84 AD3d 1616 [2011]).
In that you no longer hold a valid State driver's license allowing you to lawfully operate a motor vehicle in this State, you no longer meet a critically important minimum qualification of a Police Officer in the City of Albany.
Petitioner commenced this CPLR Article 78 proceeding on August 26, 2011. He contends that the respondent's determination to terminate his employment based on his failure to possess a valid driver's license was affected by an error of law and was arbitrary and caprcious. Petitioner also argues that the determination was without a rational basis and arbitrary and capricious because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ...for the failure to possess a valid New York State driver's license".
A pre-termination hearing pursuant to Civil Service Law §75 or, in certain cases, a collective bargaining agreement, is not necessarily required where a public employee becomes ineligibile or unqualified for continued employment (Matter of New York State Office of Children and Family Services v. Lanterman, 14 NY3d 275 [2010]; Felix v. NY City Dep't of Citywide Admin. Servs., 3 NY3d 498 [2004]). In Felix, Id., the Court of Appeals distinguished between conduct that renders an employee ineligible to continue employment (i.e. failure to maintain a residence in the City as required by the City Code) with conduct constituting misconduct. Only the latter is subject to pre-termination review pursuant to the Civil Service Law. Similarly, in Lanterman, Supra, the Court of Appeals determined that because a teacher and counselor lost certain professional certifications explicitly required by statute, they were no longer qualified to hold their positions and were thus not "disciplined" as the term was defined in their collective bargaining agreements.
The issue presented in this CPLR Article 78 proceeding is whether respondent Chief Krokoff's determination to summarily terminate petitioner based on his failure to maintain a valid New York State driver's license was made in violation of lawful procedure, affected by an error of law or was arbitrary and capricious or an abuse of discretion (CPLR §7803; Stolzman v. New York State Department of Transportation, 68 AD3d 1331 [2009]). Notably, "[j]udicial review of an administrative determination is limited to the record before the agency and proof outside the administrative record should not be considered" (Matter of Piasecki v Department of Social Servs., 225 AD2d 310, 311, 639 N.Y.S.2d 319 [1996]). The crux of petitioner's argument is that maintenance of a valid driver's license is not a "minimum qualification" of employment as a police officer in the City of Albany.
Pursuant to the City of Albany's Civil Service Rules, the City's Municipal Civil Service Commission is responsible for preparing and maintaining class specifications for all positions in the classified service. Once adopted and filed, these rules have the force and effect of law (Civil Service Law §20; Jandrew v. County of Cortland, 84 AD3d 1616, 1619 [2011]). In the "Police Officer" class specification, the Commission establishes the, "Distinguishing Features of the Class"; the "Typical Work Activities"; the "Full Performance Knowledge, Skills, Abilities and Personal Characteristics"; and the, "Minimum Qualifications" for the class. The defined "Minimum Qualifications" for the class are "[g]raduation from high school, or possession of a high school equivalency or comparable diploma as described in Section 58 of the Civil Service Law". Among the defined, "Full Performance Knowledge, Skills, Abilities and Personal Characteristics" is the, "[a]bility to operate an automobile". Petitioner contends that because the possession of a valid driver's license is not a defined, "minimum qualification" of the class, respondents had no legal basis for its determination to summarily terminate him.
Respondents concede that possession of a valid New York State driver's license is not a "minimum qualification" defined in the specification for "police officer" in the City of Albany.Respondent's Personnel Officer submits an affidavit wherein she explains that pursuant to guidance from the State Department of Civil Service, such a provision is improper because, "the minimum qualifications set forth in a job specification should only set forth [e]ducation, training, and/or experience requirements established to give reasonable assurance that all candidates certified for appointment can satisfactorily perform the essential duties of the position of appointment'" (Lyons Affidavit ¶12).
According to Chief Krokoff, the "primary function of the patrol division is to patrol assigned areas of the City in motorized vehicles...", and "there are only 33 officers who are regularly assigned to patrol by means other than motor vehicle", such as on a bicycle, horse or on foot. He avers that these officers are still "regularly and frequently required to patrol by means of motor vehicle", and, given the size and population of the City of Albany, "[t]he Department would not be able to perform the patrol function if Police Officers were not required to maintain a valid NYS drivers' license as a qualification or condition of employment". In respondent's view, the requirement that a police officer maintain a valid driver's license can be "logically inferred" from the specification because officers must have the "ability to operate an automobile" lawfully.
On the record submitted, this Court finds that respondent's determination to summarily terminate petitioner was in error. The class specification explicitly provides that the ability to drive a vehicle is necessary for "full performance" of the job. In this Court's view, "the ability to operate a motor vehicle", unlike a residency requirement (Felix, Supra), or an express license requirement (Stolzman, Supra), is not a condition or qualification affecting petitioner's eligibility to be employed as a police officer.Rather, as explicitly set forth in the specification, it is a consideration directly related, "to job performance ... or competency" (Felix, Supra, quoting Mandelkern v. City of Buffalo, 64 AD2d 279 [1978]).Accordingly, the Court finds that the respondent has not demonstrated any basis for its determination to summarily terminate petitioner here (Jandrew, Supra, 84 AD3d at 1619).
This Court has reviewed the parties' remaining arguments and finds them to be either without merit or unnecessary to consider given this Court's determination.
Accordingly, based on the foregoing, it is
ORDERED AND ADJUDGED that the petition is granted; and it is further
ORDERED AND ADJUDGED that the matter is remanded to respondent for further proceedings that are not inconsistent with this Decision and Order.
This represents the Decision and Order/Judgment of this Court. This Original Decision and Order/Judgment is being returned to the attorney for petitioner. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.
DATED: March 14, 2012
Albany, New York
________________________________________
Hon. Michael C. Lynch
Justice of the Supreme Court
Papers Considered:
1.Notice of Verified Petition and Verified Petition dated August 26, 2011, with Exhibits A-E and Memorandum of Law in Support;
2.Verified Answer, Affidavit in Opposition sworn October 27, 2011 (Steven Krokoff) with Exhibits A-B, Affidavit in Opposition sworn October 27, 2011 (Elizabeth Lyons) and Memorandum of Law;
3.Reply Memorandum of Law dated November 3, 2011.