Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position

Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former positionSilberzweig v Doherty, 2010 NY Slip Op 06709, Decided on September 28, 2010, Appellate Division, First Department Matthew Silberzweig, a sanitation worker with the New York City Department of Sanitation [DOS] was terminated after he had failed to contact DOS concerning his being absent from work without approval. The reason for the absence: Silberzweig had been arrested. After he had been acquitted of the charges filed against him, Silberzweig asked DOS to reinstate him to his former position. When DOS denied his request, Silberzweig sued and won a Supreme Court order vacating and annulling the Commissioner's decision rejecting his application for reinstatement. The Appellate Division unanimously reversed the lower court's ruling "on the law." The court said that considering Silberzweig's "prior disciplinary record and his poor performance review," the Commissioner's denial of Silberzweig's request for reinstatement after the criminal charges against him were dismissed "was rational, lawful and a provident exercise of discretion." Further, said the Appellate Division, the record did not conclusively establish that DOS had a policy of automatically reinstating former employees who were acquitted of all criminal charges against them. Significantly, the court noted that under Personnel Rules and Regulations of the City of New York Department of Citywide Administrative Services an agency head has the discretion to determine whether or not to reinstate a person who was dismissed from a permanent competitive position in the agency and "nothing in Civil Service Law §75 or the Administrative Code of the City of New York § 16-106 says otherwise." The Appellate Division also noted that Supreme Court "improperly relied on an Unemployment Insurance Appeal Board [UIAB] finding, since the finding was not part of the administrative record but was simply attached [Silberzweig's] reply memorandum of law in this Article 78 proceeding." Further, said the court, a finding by the UIAB "lacks preclusive effect in a subsequent action or proceeding," citing Labor Law §623[2] and Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], leave to appeal denied 14 NY3d 704. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06709.htm .

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