Matter of Staley v. New York State Department of Corrections and Community Supervision ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 1, 2016                   522628
    ________________________________
    In the Matter of MICHAL
    STALEY et al.,
    Appellants,
    v
    MEMORANDUM AND ORDER
    NEW YORK STATE DEPARTMENT OF
    CORRECTIONS AND COMMUNITY
    SUPERVISION et al.,
    Respondents.
    ________________________________
    Calendar Date:   October 21, 2016
    Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
    __________
    Lippes Mathias Wexler Friedman LLP, Albany (William F.
    Sheehan of counsel), for appellants.
    Eric T. Schneiderman, Attorney General, Albany (Julie M.
    Sheridan of counsel), for respondents.
    __________
    Clark, J.
    Appeal from a judgment of the Supreme Court (Platkin, J.),
    entered May 27, 2015 in Albany County, which dismissed
    petitioners' application, in a proceeding pursuant to CPLR
    article 78, to review a determination of respondents denying
    petitioner Michal Staley a promotion to the position of
    correction sergeant.
    In 1997, petitioner Michal Staley began his employment with
    respondent Department of Corrections and Community Supervision
    (hereinafter DOCCS) as a correction officer and, in 2006, was
    promoted to the position of correction sergeant. In January
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    2013, while Staley was assigned to the Coxsackie Correctional
    Facility, DOCCS issued Staley a notice of discipline charging him
    with making inappropriate sexual advances toward a female
    subordinate in violation of certain provisions of DOCCS's
    employee manual, as well as DOCCS Directive No. 2605, entitled
    "Sexual Harassment in the Work Place," and proposed a penalty of
    dismissal from service and loss of any accrued annual leave. In
    accordance with the governing collective bargaining agreement,
    petitioner New York State Correctional Officers and Police
    Benevolent Association, Inc. (hereinafter NYSCOPBA) filed a
    grievance on behalf of Staley challenging the notice of
    discipline. DOCCS suspended Staley without pay pending the
    resolution of the disciplinary grievance.
    Before the matter proceeded to arbitration, the parties
    reached a settlement agreement in full satisfaction of the notice
    of discipline. Under the terms of the agreement, Staley, among
    other things, accepted a demotion to the position of correction
    officer upon his return to work on February 27, 2012 and agreed
    to serve a 12-month disciplinary evaluation period. The
    agreement further provided, upon NYSCOPBA's and Staley's
    insistence, that "[t]he acceptance of demotion to [c]orrection
    [o]fficer in no way prohibits . . . Staley to take future
    promotional examinations."
    In October 2013, Staley took the promotional examination
    for correction sergeant and received a score of 95, placing him
    forty ninth out of 3,731 candidates on the eligible list. In
    August 2014, DOCCS promoted a group of candidates – not including
    Staley – to the correction sergeant position, most of which
    ranked lower than Staley on the eligible list. Shortly
    thereafter, DOCCS made another round of promotional appointments
    to the position of correction sergeant, again bypassing Staley.
    NYSCOPBA subsequently inquired as to why Staley had been passed
    over for a promotion, and, according to petitioners, the
    Personnel Director of DOCCS indicated that Staley would never be
    promoted and that he would be seeking Staley's removal from the
    -3-                522628
    eligible list.1 Petitioners subsequently commenced this CPLR
    article 78 proceeding alleging that respondents' failure and
    refusal to promote Staley to the position of correction sergeant
    violated the settlement agreement and was also arbitrary and
    capricious. Following joinder of issue, Supreme Court dismissed
    the petition, concluding that the settlement agreement did not
    include an express or implied promise to appoint Staley to the
    position of correction sergeant if he became reachable on the
    eligible list and that DOCCS's determination to bypass Staley in
    an exercise of its discretionary appointive authority was not
    arbitrary or capricious or affected by an error of law.
    Petitioners appeal, and we affirm.
    Petitioners argue that a fair interpretation of the
    settlement agreement includes DOCCS's implied promise to waive
    its statutory discretion under the "one-of-three" rule embodied
    in Civil Service Law § 61 (1) and promote Staley to the position
    of correction sergeant if he became reachable on a future
    eligible list. Civil Service Law § 61 (1) provides that
    "[a]ppointment or promotion from an eligible list to a position
    in the competitive class shall be made by the selection of one of
    the three persons certified by the appropriate civil service
    commission as standing highest on such eligible list who are
    willing to accept such appointment or promotion." In recognition
    that "examination success cannot reveal any possible defects of
    personality, character or disposition which may impair the
    performance of one's duties in a civil service position," the
    "one-of-three" rule affords an appointing authority with the
    discretion to individually consider each candidate and decline to
    promote the highest scoring candidate on an eligible list, so
    long as it appoints one of the three top scoring candidates
    (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo
    Bd. of Educ.], 90 NY2d 364, 375 [1997]; see Matter of Gomez v
    Hernandez, 50 AD3d 404, 404 [2008]).
    1
    The Department of Civil Service ultimately denied the
    request of the Personnel Director of DOCCS to remove Staley from
    the eligible list.
    -4-                522628
    While an appointing authority is generally not prohibited
    from voluntarily surrendering the discretion afforded to it by
    Civil Service Law § 61 (1) (see Matter of Professional, Clerical,
    Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d at 376; Matter
    of Lucas [City of Buffalo], 93 AD3d 1160, 1163 [2012]), the
    settlement agreement, which states that Staley is "in no way
    prohibit[ed from] tak[ing] future promotional examinations," does
    not expressly surrender such discretion. In assessing whether
    DOCCS impliedly surrendered its statutory discretion, we are
    mindful that, "in implying a promise[,] a court should act
    prudently and that 'a promise can be implied only where we may
    rightfully assume that it would have been made if attention had
    been drawn to it'" (Long Is. R.R. Co. v Northville Indus. Corp.,
    41 NY2d 455, 462 [1977], quoting Genet v Delaware & Hudson Canal
    Co., 136 NY 593, 609 [1893]; see Maas v Cornell Univ., 94 NY2d
    87, 94 [1999]).
    In support of their position that DOCCS impliedly promised
    to waive its discretion under Civil Service Law § 61 (1) and
    promote Staley once he became reachable on a promotional list,
    petitioners submitted the affidavit of the Mid-Hudson Region Vice
    President of NYSCOPBA, who stated that it was DOCCS's "practice
    . . . to make appointments from the eligible list in strict
    numerical order, without exercising the one-[of]-three rule to
    pass over certain individuals on the list" and that, although
    Staley's actual appointment to correction sergeant if he was
    reachable on a promotional list was not discussed during the
    negotiation of the settlement agreement, he did not believe that
    such a discussion was necessary given DOCCS's longstanding
    appointment practices. He also stated that it was both his and
    Staley's understanding that Staley would not be passed over for a
    promotion under the "one-of-three" rule. Similarly, another
    NYSCOPBA official stated that it was DOCCS's practice to make
    appointments "straight down the list in numerical order" and that
    it was "extremely rare" for DOCCS to deviate from that practice.
    In addition, both NYSCOPBA officials indicated that Staley
    had a right to take promotional examinations even without the
    inclusion of language to that effect in the agreement and that
    the disputed provision in the agreement only had meaning if it
    was interpreted as a promise to appoint Staley to the position of
    -5-                522628
    correction sergeant once he was reachable on the eligible list.
    Petitioners further submitted email correspondence in which an
    employee in DOCCS's Bureau of Labor Relations stated that DOCCS
    "ha[d] no intention of stopping [Staley] from taking future
    promotion exams" and therefore would acquiesce to Staley's demand
    that the agreement include language stating that he "not be
    prevented from taking future promotional exams for [s]ergeant."
    As properly concluded by Supreme Court, the foregoing
    submissions, considered along with affidavits of DOCCS employees
    stating that DOCCS did not waive or limit its discretionary
    appointive authority, do not demonstrate that DOCCS manifested an
    intention to surrender its appointment discretion under Civil
    Service Law § 61 (1) with respect to Staley and appoint him once
    he became reachable on the promotional list (see Long Is. R.R.
    Co. v Northville Indus. Corp., 41 NY2d at 461-462; Gertler v
    Goodgold, 107 AD2d 481, 485 [1985], affd 66 NY2d 946 [1985]).
    Accordingly, DOCCS's refusal to promote Staley to the position of
    correction sergeant did not violate the settlement agreement.
    Turning to DOCCS's determination not to promote Staley,
    DOCCS's Director of Personnel asserted that DOCCS departed from
    its usual practice of making appointments "in score and seniority
    order off the promotion-eligibility list," which departure does
    not in and of itself render DOCCS's determination arbitrary and
    capricious (see Matter of Andriola v Ortiz, 82 NY2d 320, 324
    [1993], cert denied 
    511 US 1031
     [1994]), given Staley's recent
    substantiated disciplinary charge of sexual harassment and the
    agency's policy of considering such misconduct in making
    promotional appointments so as to advance the goals of the Prison
    Rape Elimination Act (see 
    42 USC § 15601
     et seq.). Considering
    this explanation, DOCCS's determination to exercise its
    discretion under Civil Service Law § 61 (1) and bypass Staley
    when it made its promotional appointments was not an abuse of
    discretion, arbitrary and capricious or affected by an error of
    law (see CPLR 7803 [3]; Matter of Gomez v Hernandez, 50 AD3d at
    404-405).
    To the extent that any of petitioners' arguments have not
    been expressly discussed herein, they have been examined and
    found to be without merit.
    -6-                  522628
    McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.
    ORDERED that the judgment is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 522628

Judges: Clark, McCarthy, Egan, Lynch, Aarons

Filed Date: 12/1/2016

Precedential Status: Precedential

Modified Date: 11/1/2024