November 2003 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

NASSAU ORDERED TO APPOINT POLICE FORENSIC SCIENTIST

CSEA LAWSUIT RESULTS IN VICTORY FOR EMPLOYEE

This month, we will focus on a case handled by Stephen Walko of my office regarding the Nassau County Civil Service Commission's disqualification of a Forensic Medical Investigator II in the Medical Examiner's office for a position of Police Forensic Scientist II in the Police Department.

The qualifying experience required for the Police Forensic Scientist II position included "[t]hree years of satisfactory experience, acquired within the last five years, performing forensic science laboratory analysis in the area of Criminalistics."

The Commission was willing to credit the employee for her time as a Forensic Medical Investigator II but not her experience as a Forensic Medical Investigator I even though the same laboratory duties were performed.

In the words of the Court: "Here, the threshold rationale relied on in the May, 2003 [Commission]'s letter is the assertion that the petitioner's prior experience in the 'FMI I' title does not qualify toward the three-year laboratory requirement in 'Criminalist" for the 'PSF II' title.

However, … there is only a single conclusory averment supporting this claim, i.e., the bald statement that Mr. Williams directed 'his staff' to examine the issue of qualifying experience, and that his staff thereafter informed him that the petitioner's experience in the 'FMI I' title was inadequate. There is no articulated rationale or statement of reasons provided in support of this conclusion.

… although the [Commission]'s letter goes on to characterize any potentially qualifying laboratory experience performed in the 'FMI' title as excludable, out-of-title work … it provides no factual foundation and is bereft of any explanatory analysis supportive of this conclusion.

It bears noting in this respect that prior to the [denial], the petitioner submitted various letters from … her prior supervisors indicating that while holding the 'FMI I' title, she had in fact, acquired extensive, qualifying experience… The [Commission]'s denial letter does not provide any probative response or rebuttal to the preceding factual averments.

Accordingly, … the Court agrees that the Commission failed to set forth a rational basis for its determination that the petitioner was not qualified for the position of Police Forensic Scientist II…

Based on the foregoing, the petition should be granted, and the respondent, Nassau County Civil Service Commission, is directed to accept and process the petitioner's application for appointment to the position of Police Forensic Scientist II."

The long and short of the decision is that the Court held that the employee did have the required qualifications and should be appointed to the position. Just because a body, such as the Civil Service Commission, says someone is unqualified does not mean it is so. The Court will require the Commission to explain its position rationally and with supporting evidence before depriving an employee of advancement.

So, if you believe you have been improperly denied entrance to a test or appointment to a competitive position, or disqualified from a position, and you have proof that the Commission is in error, contact your CSEA representative. As the employee in this case found out, good things will happen when your Union fights for you.