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Failure to Strictly Comply With Notice Requirement in the Civil Service Law Rendered the Involuntary Leave Imposed Upon the Petitioner-Firefighter a Nullity—Petitioner Entitled to Back Pay for Leave Period—Petitioner Properly Deemed Unfit for Active Duty Due to His Inability to Manage Diabetic Symptoms

The Fourth Department determined a firefighter was properly deemed unfit for active duty as a firefighter because of his inability to manage diabetic symptoms. During the course of the decision, the Fourth Department held that the city’s failure to strictly comply with the notice requirements of the Civil Service Law rendered the involuntary leave imposed on petitioner a nullity (entitling him to back pay for the leave period):

We conclude that the procedural protections contained in Civil Service Law § 72 (1) apply to proceedings brought pursuant Civil Service Law § 72 (5) based on the language in subdivision (1) that the provisions of notice and hearing therein apply to employees “placed on leave of absence pursuant to this section” (emphasis added), “which includes Civil Service Law § 72 (5)” … . These procedures are necessary “to afford tenured civil servant employees . . . procedural protections prior to involuntary separation from service” … . “Because of the significant due process implications of the statute, strict compliance with its procedures is required” … . Here, it is undisputed that respondents did not strictly comply with the procedures pursuant to section 72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that petitioner was provided with “[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [petitioner was] not fit to perform the duties of” his position (§ 72 [1]). Although the parties had engaged in negotiations during the period before respondents provided petitioner with written notice, respondents concede that at no time did petitioner waive his rights under section 72 … . Additionally, petitioner did not receive the final notice of determination within 75 days from the receipt of his request for review (see § 72 [1]). The absence of strict compliance with these procedural requirements renders petitioner’s alleged leave a nullity prior to September 30, 2013, when Linnertz issued his final determination after reviewing the Hearing Officer’s decision … , and petitioner is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013. Matter of Williams v Troiano, 2015 NY Slip Op 05318, 4th Dept 6-19-15

 

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