Opinion
0105136/2003.
October 9, 2003.
Petitioner, Shelton Johnson, brings this CPLR article 78 proceeding to review and annul the determination by which respondents, the New York City Department of Environmental Protection ("DEP") and Christopher O. Ward, as Commissioner of DEP, terminated petitioner's employment. Petitioner seeks reinstatement and back pay, arguing that respondents' decision to dismiss him was arbitrary and capricious, and violated his rights under New York Civil Service Law § 75, 42 USC $1983, the Fifth and Fourteenth Amendments of the United States Constitution, and article 1, § 6 of the New York Constitution.
FACTS
Petitioner was employed as a construction laborer by DEP since 1993, a position in the competitive class of the New York City civil service. On January 2, 2003, petitioner was arrested for allegedly stealing DVDs from a store. Upon arresting petitioner and searching his vehicle, the police discovered that petitioner possessed a forged DEP placard and shield. Petitioner was subsequently charged with committing the following offenses: assault in the second degree (Penal Law 120.05), criminal possession of a forged instrument in the second degree (Penal Law 170.25), resisting arrest (Penal Law 205.30), petit larceny (Penal Law 155.25), criminal possession of stolen property in the fifth degree (Penal Law 165.40)and assault in the third degree (Penal Law 120.00). On January 17, 2003, petitioner pled guilty to criminal possession of a forged instrument with the intent to defraud in the third degree in violation of Penal Law $ 170.20, a misdemeanor, and he was sentenced to a conditional discharge and a $500 fine. When respondents learned of petitioner's guilty plea, they notified him by letter dated February 6,2003, that he had forfeited his employment with DEP, effective that same date. Petitioner commenced this article 78 proceeding seeking damages and reinstatement based on the ground that respondents did not provide him with written notice of the charges or a hearing prior to his termination.
DISCUSSION
It is well settled that judicial review of an administrative agency's determination is whether it was arbitrary or capricious or without a rational basis ( Matter of Chelrae Estates v State Div. of Hous. Community Renewal , 225 AD2d 387, citing Matter of Pell v Bd. of Edcuc. , 34NY2d 222). Absent a finding of arbitrariness or capriciousness, the court may not substitute its own judgment for that of the agency ( Matter of Rudin Mgt. Co. v New York State Div. of Hous. Community Renewal, 215 AD2d 243).
Respondents contend that upon conviction of Penal Law $170.20 petitioner forfeited his employment pursuant to City Charter § 1116 (a) which automatically terminates from city employment any person who, interalia, commits a fraud upon the city. Respondents further contend that since petitioner's employment was terminated under the provisions of § 1116 (a), he was not entitled to a pre-termination hearing. In support of his application petitioner contends that respondents "cannot show that [he] has ever been charged pursuant to Section 1116(a), much less convicted under the statute." Petitioner further contends that even if he had been convicted of a violation of the statute, he was still entitled to notification of the charges and a hearing prior to his termination pursuant to New York Civil Service Law $75 (1) which is a state law and overrules $1116 (a) of the City Charter. Petitioner further contends that by terminating his employment without a hearing respondents violated his due process rights under 42U.S.C. $1983, the Fifth and Fourteenth Amendments of the United States Constitution, and article 1, § 6 of the New York Constitution.
City Disciplinary Provisions
Petitioner's termination from employment was grounded upon New York City Charter § 1116, entitled "Fraud; neglect of duty; willful violation of law relative to office" which provides in pertinent part as follows:
a. Any council member or other officer or employee of the city who shall willfully violate or evade any provision of law relating to such officer's office or employment, or commit any fraud upon the city, or convert any of the public property to such officer's own use, or knowingly permit any other person so to convert it or by gross or culpable neglect of duty allow the same to be lost to the city, shall be deemed guilty of a misdemeanor and in addition to the penalties imposed by law and on conviction shall forfeit such office or employment, and be excluded forever after from receiving or holding any office or employment under the city government.
It is clear that employment with the city is conditional on complying with the above disciplinary provisions. Once an employee is convicted of the misconduct described in City Charter § 1116 (a), the employee is automatically subject to summary dismissal for failing to meet said conditions of employment ( see Matter of Duffy v Ward, 81 NY2d 127; Matter of Toro v Malcom 44 NY2d 146). Annexed to respondents' opposition papers is a copy of a complaint dated January 3, 2003, which states that Police Officer Quis Haqiqi of the 114precinct recovered "one (1) department of environmental protection (DEP) plaquard and one (1) DEP shield from inside of [petitioner's] vehicle" and that according to Sergeant Eric Lederer, "said plaquard and shield are forged." Also annexed to respondents' opposition papers is a Certificate of Disposition, dated January 31, 2003, which states that on January 17,2003, petitioner was convicted, based on his guilty plea, of criminal possession of a forged instrument in the third degree in violation of Penal Law § 170.20. Here, the record clearly establishes that the criminal offense petitioner was convicted of committing involved a "fraud upon the city." Thus, pursuant to City Charter § 1116 (a) upon conviction, petitioner forfeited his employment with the city and no pre-termination hearing was required ( see Matter of Bowman v Kerik, 271 AD2d 225).
In reply petitioner cites Ferdinand v Moses (26 NYS2d 382)in support of his contention that his "status as a legal appointee" to the permanent civil service position of construction laborer entitled him to receive notification of the charges and a hearing prior to his termination. Ferdinand similar to the present case in that the petitioner in that case was employed by the board of transportation as a station agent and along with others, was indicted and charged with a conspiracy to steal revenues to which he pleaded guilty. Upon conviction, the petitioner was summarily removed from his position. In an article 78 proceeding, the petitioner claimed that he was not a city employee within the meaning of the provisions of § 896 of the City Charter ( L 1936, the identical statute involved here). The court determined that although the board of transportation is a state instrumentality, it is so only for the purpose of operating and managing the Independent Subway System as the city's agent. The court further determined that since petitioner was a city employee, he was subject to the provisions of § 896 of the City Charter and upon his conviction, petitioner lost his "legal appointee" status and "may be summarily ejected."
Petitioner's contention that he cannot be found to have forfeited his employment because he was not charged or convicted of violating City Charter § 1116 (a) is without merit. There is nothing in the wording of § 1116 (a) that indicates that a violation of the provisions of said statute constitutes a separate crime upon which a civil service employee must be convicted before he or she can be summarily dismissed. The statute on its face plainly states inter alia that an "employee of the city who shall willfully violate or evade any provision of law relating to such [employee's] employment or commit any fraud upon the city shall be deemed guilty of a misdemeanor and in addition to the penalties imposed by law and on conviction shall forfeit such office or employment." It is clear that the specific offenses that fall within the purview of City Charter § 1116 (a) constitute crimes under the Penal Law. Thus, once petitioner's conviction for committing fraud upon the city was established under the Penal Law, the conditions of the self-executing statute were fulfilled (see Matter of Bowman v Kerik , 271 AD2d 225, supra).
Civil Service Law
Petitioner contends that pursuant to Civil Service Law § 75 (1) respondents did not have the authority to remove him from his tenured position without providing him with notice of the charges and a hearing. Petitioner further contends that since the Civil Service Law is a general law passed by the State Legislature, it takes precedence over inconsistent provisions of the New York City Charter which is a locally enacted law.
"The authority of a municipality to abrogate State law is never implied or inferred. It is only derived from express grant, never from a general grant of power. A State policy may not be ignored by a municipality unless it is specifically empowered so to do in terms clear and explicit" (Jewish Consumptives' Relief Socy. v Town of Woodbury , 230 App Div 228, 234; affd, 256 N Y 619). Civil Service Law $75 (1) (a) provides that a person holding a position by permanent appointment in the competitive class of the New York City civil service "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section." Pursuant to Civil Service Law § 76 (4), nothing set forth in Civil Service Law §§ 75 or 76 "shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division." Where a statute is clear and unambiguous on its face, the legislation must be interpreted as it exists ( see Doctors Council v New York City Employees' Retirement Sys. , 71 NY2d 669,675-676). Here, the limiting language of Civil Service Law § 76 (4)makes it clear that the Legislature intended that civil service employees holding a position by permanent appointment in the competitive class be disciplined pursuant to the City Charter.
Moreover, the disciplinary provisions of City Charter § 1116 (enacted in 1972, as derived from L 1936, $896 of the New York City Charter, as derived from L 1897, ch 378, $1551 of the Greater New York City Charter) was established more than a century ago and remains substantially unchanged today. The statute predates Civil Service Law $75 (L 1958, ch 790, § 1; as amended by L 1960, ch 312, § 1). Therefore, as both a "special law" and a "local law", § 1116 of the City Charter takes precedence over inconsistent provisions of the Civil Service Law ( see Matter of Burbridge v Miele , 214 AD2d 669; Matter of Rockland County Patrolmen's Benevolent Assn. v Town of Clarkstown , 149 AD2d 516).
Due Process
Petitioner contends that he has been deprived of his right to due process under 42 USC. $ 1983, the Fifth and Fourteenth Amendments of the US Constitution, and article 1, § 6 of the New York Constitution because he was not afforded a pre-termination hearing. The issue of whether petitioner was deprived of a due process right to a pre-termination hearing depends on whether, within the meaning of the Due Process Clause, petitioner had a "property" interest in his position and was deprived of that interest; and whether due process required a hearing prior to the deprivation ( see Boddie v Connecticut , 401 US 371,379; Bell v Burson , 402 US 535, 542). "Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law" ( ClevelandBd of Educ. v Loudermill , 470 US 532, 538 quoting Board of Regents v Roth , 408 US 564, 577). Here, the directive of § 1116 (a) of the City Charter states that any employee of the city who commits "any fraud upon the city shall be deemed guilty of a misdemeanor and in addition to the penalties imposed by law and on conviction shall forfeit such employment." It is clear on the face of the statute that § 1116 (a) communicates to an employee that his or her rights with respect to civil service employment does not include freedom from summary termination should one of its disciplinary provisions be found to apply to said employee. In the present case, petitioner's tenured position with the city automatically terminated at the moment he was convicted, based on his guilty plea, of committing a fraud upon the city by possessing a forged DEP placard and shield in violation of Penal Law § 170.20 (see Lemieux v City of Niagara Falls , 138 AD2d 945, lv denied 72 NY2d 806 ; Matter of Gunning v Codd , 49 NY2d 495 ). Once petitioner's employment was terminated upon his conviction by operation of City Charter § 1116 (a), respondents were not required to give petitioner a hearing because no property interest remained vested in petitioner ( see Greene v McGuire, 683 F2d 32).
In light of the foregoing, respondents' determination to terminate petitioner's employment was made in full compliance with § 91116 (a) of the City Charter and was neither arbitrary nor capricious. The court has reviewed petitioner's remaining contentions and find them to be without merit.
CONCLUSION
Accordingly, petitioner's application is denied and the petition is dismissed. This constitutes the decision and judgment of the court.