Taking Chances in Court
Rise in City Appeals Of CSC Decisions

By REUVEN BLAU

The Chairman of the City Civil Service Commission revealed last week that a Court of Appeals decision issued last May has emboldened city agencies to question new findings by the panel.

The Chief-Leader/Eric Weiss DOWNPLAYS THREAT: Although city agencies are increasingly challenging the City Civil Service Commission's reversals of job disqualifications, panel Chairman Simon P. Gourdine said he is not concerned about the implications for what one attorney called 'the jewel of the civil service system.'

The five-member commission handles cases from city workers appealing disciplinary charges as well as job candidates seeking to be reinstated to eligible rosters. The CSC typically reverses only a small percentage of the cases it reviews, but those overturnings generally involve ordering city agencies to reinstate a terminated employee or a disqualified candidate.

Appeals Ruling a Factor

CSC Chairman Simon P. Gourdine told the City Council Civil Service and Labor Committee that Article 78 complaints filed by city departments upset with such reversals have jumped from roughly two or three annually over the past few years to 10 in 2006.

JOSEPH ADDABBO: Won't push amendment yet.

"Clearly there has been an increase, but I don't see it as an enormous problem," Mr. Gourdine said during a phone interview last week.

Some insiders have speculated that increase is directly due to the Court of Appeals decision last spring which reversed the CSC's reinstatement of a Police Officer whom the NYPD ruled 15 years ago was psychologically unfit for duty. They are fearful that the top court's ruling will greatly curtail the review panel's legal jurisdiction.

One civil service attorney testifying at the Feb. 26 hearing suggested that lawmakers examine amending the City Charter to grant the CSC more power over the Department of Citywide Administrative Services and other city agencies.

"For those who believe that effective 'due process' requires more than merely a 'rational test' review of DCAS decision-making, then serious thought must be given to amending the City Charter," argued James A. Brown, who writes the "Know Your Rights" column for this newspaper.

Not Raising Alarm Yet

But Council Labor Chair Joseph P. Addabbo Jr. was reluctant to examine that possibility just yet. "I think we wait and see if any city agencies use this decision against the Commission," he said the day after the Council hearing, referring to the Court of Appeals ruling. "The bottom line is that there have been challenges to the Commission, and the Commission has survived them in the past."

At the hearing, attorneys familiar with the CSC were once again divided regarding the significance and possible implications of the Court of Appeals decision.

In that case, the state's highest 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.

The NYPD initially appealed the CSC ruling, arguing in an Article 78 complaint that the Commission's decision was an abuse of discretion.

The Court of Appeals concluded that the 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' unanimous 5-page decision stated.

Limited Impact?

Robert Ligansky, an attorney who deals with civil service candidate appeals, testified that he didn't believe the ruling would have larger ramifications. "Unlike some of my colleagues, I see this decision as a narrow ruling that, on its face, does not change any of the longstanding practices of the Civil Service Commission," he said.

The CSC has historically reviewed cases anew, a legal term known as de novo. "I do not think that this ruling changes that procedure," he said. "The Court of Appeals merely reversed the Commission's decision finding that it was not rational."

Mr. Ligansky called the little-known Commission the "jewel" of the entire civil system. "It does not get credit for the important function that it serves in the civil service system," he said.

Mr. Addabbo stressed that the CSC was an important "safety net" for employees, which he hoped won't be weakened by the Court of Appeals decision. "Hopefully those decisions will not be overturned," he said, referring to the 10 cases being appealed by city agencies. "That will show that there is no long-term effect of the Court of Appeals decision."

New Face At CSC

Mr. Gourdine is fairly new to the CSC. He was formally appointed Chairman of the panel by Mayor Bloomberg on Sept. 28, 2006. He previously worked as a labor lawyer, with several high-profile clients including the Metropolitan Transportation Authority, the professional basketball players' union, and various city agencies. Under Mayor Ed Koch, he served as Consumer Affairs Commissioner.

He replaced Stanley K. Schlein, a political power broker with close connections to The Bronx Democratic Party. Mr. Schlein had served on the CSC since 1982.

But Mr. Bloomberg decided against reappointing him after the Village Voice reported that state court officials banned him from accepting guardianships and other judicial appointments, referring to "conduct incompatible with the appointment and/or unsatisfactory performance."

As for the Ciacciullo decision, Jerold E. Levine, who has argued more than 50 cases before the CSC, said that it was too early to tell "because the incidence of disqualification appeals has lessened considerably since the summer of 2005. This is due to a reduction in Police Department disqualifications."

NYPD Less Stringent

Mr. Levine said he used to handle approximately two NYPD disqualifications a month. "Now I handle one every three or four months," he remarked. "They are approving people that they would normally disqualify."

That is a direct result of the department's struggles to recruit new officers under the drastically reduced starting salary of $25,100 for recruits during their first six months of training, he said.

"The result has been that the agency has lowered its hiring standards and is disqualifying many fewer people," he asserted. "Also, fewer Police Officers are being discharged for misconduct."

Police Commissioner Raymond W. Kelly has repeatedly insisted there has been no lowering of NYPD standards, and his chief spokesman vehemently disputed Mr. Levine's claims as "flatly untrue."

Can't Afford to Be Picky?

But Mr. Levine and others including the Patrolmen's Benevolent Association have argued that the NYPD has begun hiring candidates with recent criminal records and other flaws that would have previously disqualified them.

"Right now, they are so short, they just have to qualify everybody they can," Mr. Levine charged. "With a DUI they'd have either 'character' or 'psyched' you. For heaven's sake, a DUI is a major disqualification - that's a big liability risk for them."

Mr. Kelly's spokesman, Paul Browne, said, "Anyone with a drunken-driving record is barred from NYPD employment for at least five years after the incident. That reform was instituted by Commissioner Kelly and remains in force."

'A Ludicrous Claim'

He continued, "His most ludicrous claim, however, is that we 'hire everybody.' The most obvious evidence that he's wrong is the fact that we are 1,000 officers below authorized strength. That's because Commissioner Kelly made it emphatically clear to our Personnel Bureau that we will accept an under-strength force before we lower standards." Deputy Commissioner Browne noted that out of 93,438 individuals who have passed the civil service exam for Police Officer over the past five years, only 14,485 have been hired.

"Mr. Levine must look elsewhere to explain why his business is hurting," Mr. Browne said.

Fewer Cases Handled

But there has been an overall drop in disqualification cases being handled by the CSC. The CSC ruled on 678 such appeals in 2006, down from 1,273 in 2004, according to Mr. Gourdine.

It was unclear how many of those cases involved individuals applying to the NYPD. The CSC also handled 136 disciplinary appeals in 2006, which was up from the 78 in 2004, Mr. Gourdine said.

Mr. Levine also argued that the NYPD has recently started to hire foreign candidates without checking their backgrounds in those countries. "I know that the Police Department has hired people with criminal records from foreign countries and they didn't even check," he said. "They do it for a pistol license; why wouldn't they do it for a man trying to become a Police Officer?"

Mr. Browne denied that claim as well, saying, "For those born overseas who subsequently become U.S. citizens, checks are made back to their country of origin. None with criminal records are hired."