Know Your Rights: 'De Novo' Review Right Limited

Know Your Rights

'De Novo' Review Right Limited

When the Department of Citywide Administrative Services ("DCAS") renders a decision adverse to civil servants (or certain job applicants), the New York City Civil Service Commission has traditionally provided an avenue for relief. While employees often falter before the CSC, its existence is invaluable to our civil service system.

Recently, in City of New York v. Ciacciullo, two appeals courts addressed the city CSC's role in reviewing DCAS decisions involving qualifications for appointment. First, the intermediate Appellate Division, First Department sharply limited the City Commission's power to conduct "de novo" (or "new") hearings to address an applicant's disqualification from appointment.

On appeal, the state's Court of Appeals left intact the appellate court's denial of "de novo" hearings. These two decisions effectively confer disproportionate power on DCAS. As I previously asserted in "High Court Defers to DCAS," (Aug. 12, 2005 column), when DCAS is shown excessive deference, your rights, under the civil service laws, become more difficult to enforce.

Fitness for Job

In Ciacciullo, a retired Housing Authority Police Officer (the "petitioner") applied for reinstatement with the New York Police Department. DCAS, which is empowered to administer the civil service laws, authorized the NYPD to determine the medical qualifications for police officer candidates such as the petitioner.

The Police Department, as a part of its screening process, notified petitioner that he was deemed psychologically unfit to resume police officer duty. The petitioner then filed his appeal with the Civil Service Commission.

The commission conducted a "de novo" hearing in which each side presented witnesses and was permitted to introduce new evidence not considered by the Police Department in its initial determination. The Police Department supported its "unfitness" finding by submitting medical reports and by offering testimony from a psychologist. Petitioner countered with no up-to-date medical evidence, but instead relied on doctors' reports for an earlier period as well as other non-medical evidence.

DCAS Reversed

The Civil Service Commission, after its "de novo" hearing, reversed the Police Department's finding of unfitness and ordered that petitioner be reinstated to the department. The petitioner then filed an Article 78 petition in court to compel the Police Department to actually reinstate him, and DCAS filed a cross-petition seeking annulment of the commission's order.

The Appellate Division, First Department reversed the Civil Service Commission's decision in favor of petitioner. In so doing, the appellate court showed extreme deference to the Police Department and, by implication, to DCAS. In broad, sweeping language, the appellate court observed that the Police Department is "charged with responsibility for the integrity and efficiency of its operations." Accordingly, the Police Department (with the power delegated to it by DCAS) was "entitled to rely upon the expertise of its own experts."

The Appellate Division did not stop there. It further stated that the Civil Service Commission was without the authority to consider any new evidence not considered by the Police Department when it disqualified the petitioner. In other words, no more "de novo" Commission hearings. According to the appellate court, the Commission may still review such disqualifications to determine if they are "arbitrary and capricious" but based only on the evidence considered by DCAS (or, in this case, the Police Department).

Major Change

When the case reached the Court of Appeals, the Court affirmed the appellate court's decision citing the inadequacy of the petitioner's medical evidence. However, the state's highest court parted ways with the lower appellate court by holding that DCAS could not, in Ciacciullo, argue against the Commission's authority to conduct "de novo" hearings given that the Police Department had participated in the Commission's hearing.

Narrow Ruling

Still, the Court of Appeals' decision should not be mistaken for an endorsement of "de novo" Commission hearings. Rather, the Court's holding, to the extent it permitted a "de novo" Commission hearing, is extremely narrow and arguably applies only when DCAS (or the Police Department) actually participates in such a hearing.

The Civil Service Commission remains authorized to review DCAS decisions disqualifying candidates. Yet it remains to be seen whether DCAS (or the Police Department) will ever again participate in "de novo" Commission hearings. Ciacciullo may have just granted these city agencies permission to sit out any such future hearings.