Top Court Calls NYPD Justified In Barring Cop; Reversal May Make Job Appeals Tough To Win at CSC

Top Court Calls NYPD Justified In Barring Cop; Reversal May Make Job Appeals Tough To Win at CSC

By REUVEN BLAU

In a case that could have significant ramifications for city employees and jobseekers, the state's highest court last week reversed the Civil Service Commission's reinstatement of a police officer whom the NYPD ruled 14 years ago was psychologically unfit for duty.

RAYMOND W. KELLY: Has issues with CSC. Despite the reversal, however, CSC Chairman Stanley K. Schlein proclaimed a partial victory, saying the ruling affirms the Commission's jurisdiction to hear cases anew, a legal term known as de novo. "The decision is consistent with the law as the Commission understood it," he said during a May 5 phone interview. "We have been hearing cases in this manner for many decades; this decision doesn't modify that jurisdiction."

Argued for Limitations

In court filings, the NYPD and the Department of Citywide Administrative Services had argued that the CSC should be limited to reviewing prior decisions.

"Having failed to object to the authority of the Civil Service Commission to hear the matter anew - indeed, having itself presented new evidence at the hearing - DCAS cannot now complain that the Commission had no power to decide the matter de novo," the Court of Appeals' unanimous 5-page decision said.

STANLEY K. SCHLEIN: Key principle upheld. The court upheld the Appellate Division, First Department's ruling that the NYPD can rely on its own experts, who found veteran Housing Authority Police Officer Michael A. Ciacciullo unfit.

Attorneys familiar with the CSC were divided regarding the significance and possible implications of the Court of Appeals decision. The lawyers as well as Mr. Schlein were fearful that the top court's ruling would greatly curtail the review panel's legal jurisdiction.

Good or Bad for Appeals?

Robert Ligansky, an attorney who deals with civil service candidate appeals, said the decision was "very narrow, which is good for appellants."

But Jerold E. Levine, who has argued more than 50 cases before the CSC, was skeptical. "The courts have now plainly stated that the Commission has to review cases as an appellate body," he asserted. "Overall, there is no question that it is going to make it more difficult for the appellants to make arguments in front of the Commission."

Mr. Schlein, however, maintained that the Court of Appeals ruling does not restrict the CSC from adjudicating de novo cases. "It seems like the Commission doesn't have to change its standard," added Mr. Ligansky.

Yet Mr. Levine pointed out that DCAS and the NYPD may now stop recognizing CSC de novo hearings. "They may refuse to show up," he said.

"I'm not aware of any decision to take a changed approach," said Stephen McGrath, the Law Department attorney overseeing the case. "Under the decision, I guess they leave open the possibility."

Mr. Schlein acknowledged that DCAS and the NYPD could begin to question its authority, but asserted that the Commission would not change how it adjudicates cases. "We wait and see what cases come before us, and decide them," he said. "We intend to adjudicate them all."

Calls Decision Irrational

He noted that the Court of Appeals cited a prior 1986 decision involving the CSC. That ruling stated that the NYPD "charted [its] own procedural course and cannot now be heard to complain because the Civil Service Commission made findings and exercised its own discretion on the basis of the facts placed before it."

The state's highest court, however, concluded that CSC's decision to reinstate Mr. Ciacciullo was irrational, noting that the former cop had not been employed for a decade. "DCAS adduced medical evidence of his future unfitness while petitioner offered no medical evidence to rebut that proof and support his future fitness," the Court of Appeals added. Howard B. Sterinbach, Mr. Ciacciullo's attorney, did not return a call seeking comment.

Police Commissioner Raymond W. Kelly May 3 said that he hadn't yet seen the decision but downplayed the ongoing legal battle between the NYPD and the CSC. "That's their function to review personnel actions by city agencies," he remarked. "So it's not unprecedented for an appeal to go forward. This is not new news that we do this."

Asked to describe the department's relationship with the Commission, Mr. Kelly responded, "It kind of ebbs and flows." He added, "I've been around here a long time; sometimes we have more issues than not with the Civil Service Commission."

A Corrosive Effect

Mr. Kelly laid some of the blame on the CSC's reversals after a report released last March found that 20 percent of the rookie cops in a sample of the 2003 Police Academy class should have been disqualified due to prior arrest records.

"In rare instances, the Police Department has been forced by the Civil Service appeals process to hire individuals we had initially rejected," an opinion piece by Mr. Kelly in the Daily News stressed. "But those numbers are inconsequential - only a few among the 8,000 police officers hired in the last three years."

The CSC reversed only 5 percent of the cases it reviewed in 2002 - the last year statistics were made available.

The case in question began in March 1991, when the NYPD ruled that Mr. Ciacciullo was psychologically unfit for duty. He was granted a job-related disability pension equal to three-quarters of final salary the following March after an NYPD psychologist diagnosed him with a paranoid personality disorder.

NYCERS Cleared Him

But in 1994, Mr. Ciacciullo asked the New York City Employees' Retirement System to re-evaluate his case and move to restore him. A NYCERS psychologist, however, recommended against reinstatement. In 1999, Mr. Ciacciullo again appealed his case before NYCERS, and was finally found fit to return to work by two psychiatrists. NYCERS placed him on a preferred civil service list, but the NYPD denied his reinstatement. The long legal battle continued when he appealed that decision to the CSC, which ruled in his favor, 3 to 1.

"The evidence clearly shows that appellant does not have any psychological disorders as indicated by the numerous psychologists and his testing results," the majority CSC decision stated.

Notably, Mr. Schlein wrote the dissenting opinion. While he said that Mr. Ciacciullo had not shown any psychological problems over the past few years, "He is, however, seeking to be restored to the position of Police Officer that caused him to be placed on a psychological disability in 1992."

Might Not Stand Stress

Mr. Ciacciullo, he added, did not prove that he would be able to handle the stresses of the job if he were restored to full-duty. "Appellant has been on a disability pension for the past 10 years and has failed to maintain any other employment during this time," he noted.

The NYPD appealed the CSC ruling, arguing in an Article 78 complaint that the Commission's decision was an abuse of discretion. Last July, the Appellate Division, First Department ruled in favor of the NYPD and reversed the CSC's decision.

The Appellate panel ruled that the NYPD can rely on its own experts, who found Mr. Ciacciullo unfit. "On the other hand, as noted by the dissenting member of the Civil Service Commission, respondent has presented no evidence to show that he would be able to handle the daily stresses of a full-time police officer if he were restored to that position," the appeals court said.

As a result of the Court of Appeals ruling, Mr. Levine said he believed that petitioners will now have to prove that the city's personnel decision was arbitrary or capricious. Making that argument, he said, involves the tedious process of scanning through reams of records that must be supplied by city agencies.

More Litigation?

"While the city is going to feel that this is a great victory for them, the reality is that this decision opens up possibilities for very time-consuming and costly litigation," he remarked. The decision, he added, could also result in fewer civil service candidate disqualification reversals. "There are people who yesterday could have won a case, but after this decision that's going to be very hard."