Opinion
1932/2017
04-18-2019
In the Matter of the Application of Christopher REDDEN, Petitioner, v. The CITY OF NEW YORK, Respondent.
Pro Se Petitioner, Christopher K. Redden Attorneys for Respondent, Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room —109(f), New York, NY 10007, Attn: Liliya Perelman, Esq.
Pro Se Petitioner, Christopher K. Redden
Attorneys for Respondent, Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room —109(f), New York, NY 10007, Attn: Liliya Perelman, Esq.
Katherine A. Levine, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers/Numbered
Order to Show Cause and Verified Petition with Accompanying Affidavits and Exhibits 1
Notice of Cross Motion to Dismiss 2
Memorandum of Law in Support of Respondent's Cross-Motion to Dismiss 3
This case addresses the issue of whether the Fire Department of the City of New York ("FDNY" or "respondent") acted in violation of lawful procedure when it denied a candidate who had been disqualified from being on an eligible list, after pleading guilty to a misdemeanor, the right to be hired or placed on a special eligible list.
Petitioner Christopher Redden ("petitioner" or "Redden") took and passed Civil Service Exam No. 2000 for a position as a firefighter for the FDNY, which made him eligible to obtain a job as a firefighter. His name was placed on an "eligible list" created under Civil Service Law ("CSL") § 61. On October 7, 2016, petitioner was arrested and charged with disorderly conduct because his co-worker in a van with him possessed marijuana. On May 11, 2017, Mr. Redden pled guilty to possession of marijuana which, under New York State Law, constitutes a misdemeanor. On May 31, 2017 the FDNY Bureau of Human Resources sent Redden a Final Notice of Disqualification ("Notice") which stated that Redden was not qualified for Appointment because of Character - Arrest/ conviction history- and employment history. The Notice informed Redden that he had 30 days to appeal the determination and Redden timely appealed the decision on June 7, 2017.
By Decision and Order dated June 12, 2017, the Civil Service Commission ("CSC") vacated Redden's disqualification based upon the fact that there was insufficient time prior to the expiration of the list on June 26, 2017 to hear his the appeal and complete the post-examination certification process; i.e., conducting a background check and determining whether petitioner was fit to perform the duties of a firefighter. The order noted that Redden could list the CSS's reversal of his disqualification on future applications for employment.
Petitioner commenced this article 78 proceeding on June 26th - the date that the eligible list expired - claiming that his disqualification was arbitrary and capricious and contrary to law. Redden claims that the FDNY's reliance on his employment history was arbitrary because he was continually employed and the FDNY investigator never even called his current employer who would have given him a good reference. He also claims that FDNY candidates with "far more egregious personal histories have been deemed qualified" to become members of the FDNY. Finally he claims that he is too old to take the next FDNY exam so that it is necessary for him to be placed on the special eligibility list.
Respondents contend that this court lacks the power to extend the civil service list beyond the date of expiration of the list that Redden was on, citing City of NY State Div. Of Human Rights , 93 NY2d 768, 774 (1999) and that a special eligibility list cannot be created once the civil service list has expired.
Pursuant to Article V, § 6 of the New York Constitution, periodic examinations are given to candidates for appointment to civil service positions, including firefighter positions and, once the results of an examination are calculated, an eligible list is established which places the successful candidates in order of their grades. The list continues for not less than one nor more than four years, and terminates upon the establishment of a new list. Appointments to civil service positions must be made from the names on the list but the appointing authority has the discretion to select any one of the top three candidates who are willing to the accept the appointment. CSL § 61(1) ; Mtr of Deas v. Levitt , 73 NY2d 525, 529 (1989).
Being named on an eligible list does not create any vested right to be appointed; at most it conveys the right to be considered and the possibility of an appointment. Andriola v. Ortiz , 82 NY2d 320, 324 (1993) ; Cassidy v. Municipal Civil Service Com. , 37 NY2d 526, 529-530 (1975). In recognition that "examination success cannot reveal any possible defects of personality, character or disposition which may impair the performance of ones duties in a civil service position," the "one-of-three" rule affords an appointing authority with the discretion to individually consider each candidate and decline to promote the highest scoring candidate on an eligible list, so long as it appoints one of the three top scoring candidates." Mtr. Of Stanley v. NY State Dept. Of Corrections , 145 AD3d 1160, 1162 (3d Dept. 2016) citing to Mtr. Of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.] , 90 NY2d 364, 375 (1997). Pursuant to CSL§ 50(4), the civil service department may investigate the qualifications and background of a candidate who has passed the examination and disqualify a candidate from appointment if it finds that he is unfit to perform the duties of the position in a reasonable manner. Thus, the FDNY, as a civil service department, has the discretion to disqualify a candidate on the eligible list who has been found guilty of a crime.
CSL § 56(3) applies in the case of an applicant whose disqualification has been reversed prior to the expiration of the eligible list The first portion of CSL § 56(3) provides that the applicant must be placed back onto the eligible list "for a period of time equal to the period of disqualification ..., up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer." However, if the eligible list "expires prior to the expiration of such period of restoration, the name of the applicant or eligible shall be placed on a special eligible list, which shall have a duration equal to the longer of (a) the remainder of the period of restoration or (b) two years." Here, petitioner's disqualification was reversed on June 12, 2017, which was prior to the expiration of the eligible list on June 26, 2017.
The third sentence of § 56(3), which establishes a special eligibility list for applicants whose disqualification was reversed after the expiration of the an eligibility list was found to be unconstitutional and will be addressed infra.
In NYS Div. Of Human Rights , supra, the Court addressed the constitutionality of a 1994 amendment to Civil Service Law § 56(3), which provides: "An applicant or eligible whose disqualification has been reversed ... subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time equal to the restored period of time not to exceed a maximum of one year." 93 NY2d at 773-774. The Court noted that the "benefitted" group was comprised of applicants whose disqualification from consideration for employment was nullified through administrative action after an initial eligible list had already expired. The statutory amendment was intended to provide a meaningful remedy for those who won the battle to be found eligible to compete for a permanent civil service position but "lost the war" because the eligible list was approaching extension or had already expired." Id. at 778 citing to letter from Assembly member Weinstein, Bill jacket, L1994, ch. 206. The Court then stated that the Legislature had enacted this subdivision to remedy the situation created by Mtr. of Deas , supra . There, the petitioner's certification was delayed because he was found to be medically unfit and he was disqualified from the eligible list. On August 14, 1986, the Civil Service Commissioner reversed the Department of Personnel and found that petitioner was eligible for promotion. However, on September 5th the Department of Personnel notified petitioner that it could not certify him because the eligible list had expired on August 27th at which point a new eligibility list, based upon a competitive examination, had been formulated .
The Deas Court found that Article V, § 6 of the Constitution barred a civil service applicant from being appointed from an expired list. It relied upon three previous cases which had established that entitlement to the relief of being placed on a special eligible list required two elements: that the proceeding, be it administrative or judicial, had to be commenced before the expiration of the list, and that the claimant had to challenge the validity of the list itself; i.e. that it violated the constitutional merit and fitness requirements and that unqualified individuals were obtaining appointment. Id. at 531. Therefore "it is not sufficient to attack either the validity of the eligible list or commence a proceeding before the list has expired. Relief may not be granted unless the applicant does both." Id. at 531. See, Colavito v. N.Y.C. Civ. Serv. , 277 AD2d 94 (1st Dept. 2000) (to be placed on special eligibility list once an eligibility list expires, one must challenge the validity of the list itself). Based upon this precedent, the Court of Appeals concluded that petitioner Deas was not entitled to be placed upon a special eligible list because he had not alleged that the eligible list was constitutionally invalid, only that he was wrongfully denied certification. Id.
In State Division of Human Rights, supra , the Court of Appeals ruled that the 1994 amendment to § 56(3) allowing an applicant or eligible, whose disqualification had been reversed subsequent to the expiration of the eligible list, to be placed on a special eligible list up to a maximum of one year, was unconstitutional because it violated the Merit and Fitness Clause of the State Constitution (Art. V, § 6 ). 93 NY2d at 771. Specifically, while the Legislature was empowered to create and enforce eligibility lists, it could not create a new substantive remedy i.e. authorizing an opportunity to candidates whose entitlement to consideration for appointment ended because the original list lost its legal cognizability. 93 NY2d at 774. Furthermore, the rationale of Mtr. of Deas - "that appointment of an individual from a constitutionally valid expired list violates" the state constitution- was also still compelling. Id citing to 73 NY2d at 531.
Of special salience to the instant matter, the Court reiterated its pronouncement in Deas that "the crucial factor for resolving the challenge was the nature of the claim." Id at 774. An applicant could not simply assert that he was wrongfully ruled ineligible, Rather the challenger must "attack the validity of the list itself, as being in violation of the merit and fitness requirements." Id at 774. "Where such a challenge to the entire list is successful, the corrected list is extended - a special list- "because the original was never valid." 93 NY2d at 774, citing to Deas, supra , 73 NY2d at 534.Because the 1994 amendment transforms a narrow remedy to make special eligible lists available "to any and all improperly disqualified applicants regardless of the nature of their claim, it goes too far and breaches the constitutional barrier." Id. at 775. That is because it creates a "possible conflicting appointment, reincarnated out of an expired list." Id.
Here, Redden filed his administrative appeal before the list expired and was placed back on the eligible list for 14 days. However, Redden never challenged the validity of the list itself, much less successfully challenged it, the second crucial component that an applicant must show before being put on a special eligibility. See, Mtr of Carozza v. City of NY 37 AD3d 247 (1st Dept. 2007) (to be placed on eligible list, petitioner must challenge validity of list itself prior to its expiration); Mtr of Pena v. NYC , 27 AD3d 293 (1st Dept. 2006) (only if a petitioner's challenge to the list itself was successful would a petitioner have a remedy that comports with the NY Constitution, "in that the original list would have had no legal existence, and thus could not have expired, allowing for extension of a "corrected list"). In light of the above, the petition is denied. This constitutes the Decision and Order of the Court.