Dower v. Poston

• Decision Date: 07 December 1973
• Citation: 76 Misc.2d 721,351 N.Y.S.2d 272
• Parties: Application of Edward R. DOWER, Petitioner, v. Mrs. Ersa H. POSTON et al., Respondents.
• Court: New York Supreme Court

Page 272

351 N.Y.S.2d 272

76 Misc.2d 721

Application of Edward R. DOWER, Petitioner, v. Mrs. Ersa H. POSTON et al., Respondents.

Supreme Court, Special Term, Albany County.

Dec. 7, 1973.

Rosner, Rosner & McEvoy, New York City, for petitioner; Samuel Jacobs, Albany, of counsel.

Louis J. Lefkowitz, Atty. Gen., Albany, for respondents; Jack W. Hoffman, Asst. Atty. Gen., Lewis S. Nestle, Deputy Asst. Atty. Gen., of counsel.

HAROLD E. KOREMAN, Justice:

Petitioner seeks a judgment pursuant to Article 78 annulling the determination of respondents Civil Service Commissioners disqualifying petitioner from appointment as Excise Tax Investigator in the State Department of Taxation and Finance, and directing respondents to reinstate him to employment with compensation from the date of termination of employment.

The record before the court discloses that petitioner made application for open competitive examination for the position of Excise Tax Investigator. The announcement of the examination stated, among other things, that conviction of a felony will bar, and conviction of a misdemeanor may bar examination and appointment. In response to a question in the application as to whether petitioner had ever been convicted of an offense he placed a check mark in the box marked 'no'. Thereafter in the course of an interview by the Department of Civil Service, petitioner stated that he had left a position with the Federal Government because he had pleaded 'nolo contendere' to a Federal charge of conspiracy. Petitioner was then advised that his certification would be suspended and that he could not receive an appointment until further clarification of this matter, and thereafter the Department of Civil Service advised petitioner that his eligibility was restricted and gave him formal written notice of restriction. In response to an inquiry by petitioner's attorney as to the reasons for this restriction, the Department of Civil Service forwarded a copy of petitioner's personal history supplement containing a notation 'Indicted conspiracy--Nolo contendere plea to close.' A communication from the United States Attorney for the District of Maryland to the Department of Civil Service states that on March 8, 1971 petitioner entered a plea of nolo contendere as to Count No. 1 of the indictment found against him which charged conspiracy to defraud the United States, and on July 26, 1971 imposition of sentence was suspended as to imprisonment, and petitioner was placed on probation for a period of three years. On February 14, 1973 the Department of Civil Service certified a list of eligibles for the position of Excise Tax Investigator to the Department of Taxation and Finance, with petitioner's name appearing on the list. A notation placed opposite petitioner's name (Restrict Code No. 6) indicated that the necessary investigation had not been completed before restrictions on his eligibility could be removed. By mistake or error the Department of Taxation and Finance appointed petitioner to the position of Excise Tax Investigator to commence May 3, 1973, despite the restriction placed after petitioner's name by the Department of Civil Service. The appointment came to the attention of the Civil Service Department when it received the payroll for certification, and it then directed the Department of Taxation and Finance to change petitioner's appointment from permanent to temporary in order to compensate him for the two week period, and also directed that the Department of Taxation and Finance rescind petitioner's appointment. Accordingly, petitioner was removed from the payroll effective May 17, 1973.

Petitioner contends that since a plea of 'nolo contendere' does not constitute an admission of guilt of the crime charged, as distinguished from a plea of guilty or a finding of guilty, he correctly stated, and in fact, was never convicted of any criminal offense, and thus such a plea may not be used collaterally for any purpose. Thus, petitioner argues, the termination of his employment predicated on an erroneous interpretation of the legal effect of his plea of nolo contendere constitutes a violation of his constitutional right to due process, and further, that his right to due process was violated in that his employment was terminated without just cause and without a hearing as required by law. Finally, petitioner takes the position that since he was appointed to the position by the Department of Taxation and Finance, and retained in that position for a period of two weeks respondents were estopped from terminating his employment.

Civil Service Law, Section 50, provides in pertinent part that:

'4. Disqualification of applicants or eligibles. The state civil department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible

(d) who has been guilty of a crime * * *;'

'No person shall be disqualified pursuant to this subdivision unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.'

The action of respondent Department of Civil Service complained of was taken pursuant to Section 50, subd. 4(d) of the Civil Service Law. While a plea of nolo contendere to a criminal charge is not an admission of the facts constituting the crime charged, the judgment of conviction following such a plea subjects the defendant to all the consequences of a conviction in the same way...