Sinicropi v. Bennett

• Decision Date: 21 March 1983
• Parties: Angelina SINICROPI, Petitioner, v. Robert J. BENNETT, as Deputy Director of Probation of the County of Nassau, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 809

460 N.Y.S.2d 809

92 A.D.2d 309

Angelina SINICROPI, Petitioner, v. Robert J. BENNETT, as Deputy Director of Probation of the

County of Nassau, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

March 21, 1983.

William D. Friedman, Hempstead, for petitioner.

Edward G. McCabe, County Atty., Mineola (Robert O. Boyhan, Deputy County Atty., Mineola, of counsel), for respondents.

Before GIBBONS, J.P., and O'CONNOR, WEINSTEIN and BOYERS, JJ.

O'CONNOR, Justice.

The issue for resolution is whether a tenured civil servant is entitled to be paid her salary for the period between the government employer's initial determination dismissing the employee from her position, which initial determination was annulled by this court for procedural error, and a subsequent determination, made upon remittitur, which also dismissed the employee and which we now find to have been properly made. Constrained by stare decisis, this court must answer in the affirmative. Nevertheless, I believe that the analysis compelling this result requires re-examination.

THE FACTS

In her petition, Angelina Sinicropi alleges that on June 20, 1978 she was dismissed from her tenured position with the Nassau County Department of Probation after a hearing upon charges of misconduct. This court annulled that determination and remitted the matter for a de novo determination on the original hearing record by a qualified official other than the one who had improperly made the original determination (Sinicropi v. Milone, 80 A.D.2d 609, 436 N.Y.S.2d 48).

On July 21, 1981, an identical determination was made. The instant proceeding was then brought to annul the second determination, but a review of the record discloses no grounds for disturbing the findings of guilt or the penalty of dismissal. Petitioner insists, however, that under the logic of recent decisions of this court and the Court of Appeals she is entitled to be paid by the county for the 37-month period between determinations even though she performed no services and was guilty of the misconduct causing her suspension and eventual dismissal. Unfortunately, petitioner is correct.

THE LAW

In Matter of Tanner v. County of Nassau, 88 A.D.2d 661, 662, 450 N.Y.S.2d 733, this court stated: "The law is clear that when a determination imposing sanctions under section 75 of the Civil Service Law is annulled, the employee is entitled to be reinstated to his or her former position with back pay until such time as a new determination may be rendered which again punishes the employee (cf. Wind v. Ravo, 69 A.D.2d 879 ; Wind v. Green, 78 A.D.2d 695 ; Matter of Romeo v. Union Free School Dist., No. 3, Town of Islip, 64 A.D.2d 664 )." (See, also, Matter of McLaughlin v. North Bellmore Union Free School Dist., 86 A.D.2d 870, 447 N.Y.S.2d 304.) In reaching that conclusion, this court relied on earlier interpretations of subdivision 3 of section 75 of the Civil Service Law, which provides in relevant part:

"Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days. If such officer or employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars to be deducted from the salary or wages of such officer or employee, suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal from the service; provided, however, that the time during which an officer or employee Earlier decisions established the principle that an employee was entitled to reinstatement to the public payroll after expiration of the statutory period (i.e., 30 days) even though his suspension continued thereafter. The employer's obligation to pay, being independent of the employee's obligation to render services (see, e.g., Matter of Pelaez v. Waterfront Comm. of N.Y. Harbor, 77 A.D.2d 947, 431 N.Y.S.2d 134; Levine v. New York City Tr. Auth., 70 A.D.2d 900, 417 N.Y.S.2d 307, affd. 49 N.Y.2d 747, 426 N.Y.S.2d 271, 402 N.E.2d 1172; Matter of Yeampierre v. Gutman, 52 A.D.2d 608, 382 N.Y.S.2d 104, mot. for lv. to app. dsmd. 40 N.Y.2d 918; Matter of Damino v. Shapiro, 50 A.D.2d 888, 377 N.Y.S.2d 925, affd. 40 N.Y.2d 1056, 392 N.Y.S.2d 283, 360 N.E.2d 960; Matter of Maurer v. Cappelli, 42 A.D.2d 758, 346 N.Y.S.2d 154; Matter of Prezio v. De Santis, 38 A.D.2d 772, 328 N.Y.S.2d 32; Matter of Gould v. Looney, 34 A.D.2d 807, 311 N.Y.S.2d 695; Hussey v. Town of Oyster Bay, 24 A.D.2d 570, 262 N.Y.S.2d 396; Matter of Amkraut v. Hults, 21 A.D.2d 260, 250 N.Y.S.2d 171, affd. 15 N.Y.2d 627, 255 N.Y.S.2d 672, 203 N.E.2d 923), was likewise independent of the merits of the employer's disciplinary case against the employee. Hence, the employer's obligation to pay continued uninterrupted until all litigation ceased--even if the suspension, dismissal or other disciplinary action was found, in retrospect, to have been wholly justified on the merits (see Matter of Toro v. Malcolm, 44 N.Y.2d 146, 151, 404 N.Y.S.2d 558, 375 N.E.2d 739; Gerber v. New York City Housing Auth., 42 N.Y.2d 162, 165, 297 N.Y.S.2d 608, 366 N.E.2d 268; Matter of Horton v. Kammerer, 84 A.D.2d 841, 444 N.Y.S.2d 176; Matter of Thompson v. New York City Tr. Auth., 78 A.D.2d 543, 432 N.Y.S.2d 92; Matter of Rider v. Board of Trustees of Vil. of Rockville Centre, 78 A.D.2d 856, 432 N.Y.S.2d 636; Matter of De Marco v. City of Albany, 75 A.D.2d 674, 675, 426 N.Y.S.2d 860; Matter of Fusco v. Griffin, 67 A.D.2d 827, 413 N.Y.S.2d 75; Kearse v. Fisher, 67 A.D.2d 963, 413 N.Y.S.2d 466; Matter of Burrison v. New York City Tr. Auth., 60 A.D.2d 651, 400 N.Y.S.2d 364; Matter of Gibson v. Board of Educ. of Norwood-Norfolk Cent. School, 59 A.D.2d 963, 399 N.Y.S.2d 296, affd. 45 N.Y.2d 884, 410 N.Y.S.2d 811, 383 N.E.2d 113; Cassidy v. Police Dept., County of Nassau, 54 A.D.2d 682, 387 N.Y.S.2d 266; Matter of Lytle v. Christian, 47 A.D.2d 824, 365 N.Y.S.2d 865; Matter of Stein v. Murphy, 44 A.D.2d 796, 355 N.Y.S.2d 133; Matter of Mason v. Perrotta, 41 A.D.2d 916, 343 N.Y.S.2d 748; Moquin v. Lowery, 35 A.D.2d 661, 314 N.Y.S.2d 474; Matter of Amkraut v. Hults, 21 A.D.2d 260, 250 N.Y.S.2d 171, affd. 15 N.Y.2d 627, 255 N.Y.S.2d 672, 203 N.E.2d 923, supra).

is suspended without pay may be considered as part of the penalty. If he is acquitted, he shall be restored to his position with full pay for the period of suspension" (emphasis supplied).

The rationale for such a conclusion was stated by the First Department in the landmark case of Matter of Amkraut v. Hults (supra). The court ruled that under subdivision 3 of section 75 of the Civil Service Law, a public employee suspended for a period in excess of 30 days, who is thereafter dismissed, could recover wages or salary for the excess period if the delay in reaching the dismissal determination was not caused by the fault of the employee. ¹ The majority opinion reasoned (p. 263, 250 N.Y.S.2d 171) that the language of the provision "indicates an intention that hearings on charges should not be unreasonably protracted, but should be disposed of expeditiously" because as a practical matter the accused frequently loses all income during suspension and is reluctant to seek other employment, particularly if he has acquired tenure or pension rights. With respect to the appropriate remedy for the employer's tardiness, the majority ruled that the employer must pay the employee his wages or salary during the excess period of suspension (p. 263, 250 N.Y.S.2d 171): "In all The dissenting opinion, demonstrating that the majority assumed it was writing on a tabula rasa, pointed out that traditionally the remedy for the employer's delay in disciplinary matters was commencement by the employee of a special proceeding in the nature of mandamus for reinstatement to his position pending the determination, and that his right to receive his wages or salary was conditioned upon this initial discretionary relief (21 A.D.2d 260, 263, 250 N.Y.S.2d 171, supra ).

fairness then a prompt disposition is desirable from the standpoint of all parties. Where that does not occur, he who is responsible should assume the risk of liability for compensation."

This court aligned itself with the First Department in Matter of Gould v. Looney, 34 A.D.2d 807, 311 N.Y.S.2d 695, supra, agreeing with Special Term's award of back pay, except to the extent that a portion of it was attributable to the statutorily authorized 30-day payless suspension period. Special Term's opinion in Matter of Gould v. Looney, 60 Misc.2d 973, 976-977, 304 N.Y.S.2d 537, had gone so far as to argue that at common law an employee who was suspended but not dismissed had been entitled to receive his salary.

Similarly concluding that the right to salary continued until dismissal from employment, the Court of Appeals, in construing the cognate provision of section 3020-a of the Education Law in Matter of Jerry v. Board of Educ. of City School Dist. of City of Syracuse, 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324 N.E.2d 106, held that a tenured teacher could not lawfully be suspended without pay. Section 3020-a states in relevant part:

"2. Disposition of charges * * * The employee may be suspended pending a hearing on the charges and the final determination thereof.

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"4. Post hearing procedures * * * Within thirty days of receipt of [the] hearing report the employing board shall implement the recommendations thereof, which shall include the penalty or punishment, if any, of a reprimand, a fine, suspension for a fixed time without pay or dismissal. If the employee is acquitted he shall be restored to his position with full pay for any period of suspension and the charges expunged from his record" (emphasis supplied).

The four-member majority of the court rejected the dissenters' argument that the foregoing emphasized portion of the last...