Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, April 8, 2009

Sanitation Worker Reinstated as AWOL Status Due to Arrest, Acquittal Is Not Misconduct

Silverzweig v. Doherty, ___Misc.3d___ (N.Y. Co. Feb. 2, 2009)(registration required), is a very interesting case. Plaintiff, a sanitation worker was dimissed for being AWOL. Why? He was in jail awaiting trial for Conspiracy to Commit Murder for Hire. Ultimately, he was acquitted after trial and sought reinstatement. The court held that it was arbitrary and capricious for the public employer not to reinstatement him, reasoning:

The denial of reinstatement also violates the above-discussed requirement of Civil Service Law §75 that no disciplinary action be taken absent misconduct. As the statutory grounds for disciplinary action reveal, misconduct on the part of a civil service employee "implies intentional and willful disobedience." Reisig v. Kirby, 62 Misc.2d 632 (Sup. Ct., Suffolk Co. 1968), aff'd 31 AD2d 1008 (2nd Dep't 1969)(emphasis in original), citing Matter of Griffi v. Thompson, 202 NY 104. CSL §75 further confirms that "[t]he burden of proving incompetency or misconduct shall be upon the person alleging the same," in this case, the respondent. Thus, in Reisig, the court annulled the decision discharging a civil service employee for insubordination based on her refusal to respond to an order directing her return to work, when she documented that she was physically unable to return to work. Finding that the evidence failed to establish that the employee had intentionally or willfully disobeyed her employer, the court held that the facts fell "far short of insubordination and misconduct such as would justify [the employee's] discharge." 62 Misc.2d at 635.

Similarly, in Cosgrove v. Carey, 253 App. Div. 613 (1st Dep't 1938), rev'd on other grounds 278 NY 350, the First Department annulled a decision dismissing a firefighter because he was unable to perform the duties of his position due to physical degenerative changes. Finding that the facts did not constitute "censurable incapacity," the court stated (at 614): "The incapacity of old age is not an 'offense' to be 'punished' by dismissal from the service or the imposition of a 'penalty,' and we cannot believe that the framers of the charter intended such a result."

Such is the case here. While Silberzweig's absence without leave due to his arrest may have justified the termination of his employment, no misconduct existed which justified the denial of reinstatement once Silberzweig had been acquitted of the charges which had led to his arrest. The Third Department has ruled to this effect in the context of unemployment insurance benefits. For example, in Matter of Hartnett, 175 AD2d 936, 937 (1991), the court held as follows:

Nor can claimant's arrest on the drug possession charge support a finding of misconduct, because that charge was ultimately dismissed and there is no evidence in the record to suggest that claimant was in fact involved in any drug-related activity. To hold otherwise would give rise to an implication that willfulness has come to mean being in the wrong place at the wrong time. Indeed, such a holding would establish a dangerous precedent, i.e., that disqualifying conduct may be predicated on a mere arrest unsupported by a conviction. . . .

Indeed, such a decision was made by the Unemployment Insurance Appeal Board in Silberzweig's own case. (See Exh. 1 to Reply Memo). Initially, the Department of Labor had disqualified Silberzweig from receiving benefits on the ground that his employment had been lost through misconduct because be had been absent without leave during his incarceration.

This is a very significant decision and my guess is that it is going to be appealed. It comes down to the fact that the court saw a distinction between the decision to terminate (based upon being AWOL) and the decision to reinstate (application made after the acquittal). The problem with the court's analysis, and it is a significant problem, is that I do not believe that the employee had a right to reinstatement. If that is the case, then how could the decision denying reinstatement be arbitrary and capricious. On the other hand, perhaps there is a public policy in the corrections law which would support reinstatement-a point not discussed by the court.

Law review commentary with respect to this issue would be most welcome.

Mitchell H. Rubinstein

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Tracked on Apr 24, 2009 11:22:23 AM


Re the issue of termination based on AWOL...the defense of "impossibility of performance" would appear to be reasonable, if not compelling. In any event, assuming the individual was entitled to "administrative due process," he or she should not be tried in absentia as the appointing authority would be aware of the reason for his or her failure to appear at the disciplinary hearing. Thus any disciplinary action would have to await the individual's release from custody.

As to reinstatement, Section 30.1(e) of the Public Officers Law provides some insights regarding this type of situation insofar as a public officer is concerned.

A "reinstatement hearing" is available in the event a public officer is removed from his or her position pursuant to Section 30.1 (e) of the Public Officers Law upon the officer's conviction of a felony or a crime involving a violation of the officer's oath of office and the conviction is later reversed "where the conviction is the sole basis" for the termination.

It could be argued that it would be arbitrary and capricious for the appointing authority not to provide an administrative hearing in situations such as described in the Siverzweig case. However, providing such a hearing does not imply that the individual is entitled to reinstatement as there could be viable reasons supporting the appointing authority's decision not to reinstate the individual to his or her former position as a result of such a hearing.

Posted by: Harvey Randall | Apr 12, 2009 6:09:45 AM

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