Opinion
106413/09.
August 14, 2009.
DECISION and ORDER
Conrad Shih ("Petitioner") brings this petition pursuant to Article 78 of the CPLR for a judgment reinstating Petitioner to his former position as an auditor with the Waterfront Commission of New York Harbor, and awarding full back pay and benefits, as well as costs and attorney's fees.
The Waterfront Commission of New York Harbor ("the Commission") is a public agency duly constituted pursuant to the laws of New York and New Jersey, and was created for the purpose of eliminating racketeering on the waterfront of the Port of New York ( see In re Worldwide Management Consultants, Inc., 65 N.Y.2d 911 [1985]). Petitioner was employed by the Commission as an auditor from July of 2002 until his termination on March 25, 2009. On December 2, 2008, Petitioner was arrested for petit larceny and fifth degree criminal possession of stolen property. The criminal complaint alleges that, on that date, Petitioner was observed by a security guard at JR Music World removing a DVD, concealing it under his shirt, and attempting to leave the store without paying for it.
On December 15, 2008, Walter Arsenault, the Commission's Executive Director, sent Petitioner a letter indicating that the Commission has resolved to suspend Petitioner indefinitely, pending the outcome of his criminal case, along with a copy of the resolution.
On February 23, 2009, Petitioner pleaded guilty to disorderly conduct. Petitioner paid a fine and performed one day of community service.
By letter dated February 26, 2009, Petitioner, through counsel, sent a letter to the Commission demanding reinstatement will full back pay.
Petitioner and the Commission dispute what happened next. According to Petitioner, his employment status remained unclear from early March of 2009 until the point of filing the instant petition. Petitioner further alleges that he was unaware that he was terminated until he received the Commission's papers in response to the petition. The Commission, on the other hand, states that Arsenault spoke with Petitioner's counsel on or around February 26, 2009, and advised him that a decision would be made as to Petitioner's status at the next Commission meeting. Further, the Commission states that the decision was made to terminate Petitioner on March 25, 2009, and that the Commission mailed the Employee Payroll Notice advising him of the termination.
Petitioner filed the instant petition on or around May 3, 2009. Plaintiff alleges that the Commission violated his due process rights based upon the Commission's decision to terminate him without affording Petitioner a hearing, which Petitioner claims he was entitled to pursuant to the Commission's Employees' Manual ("Manual"). Annexed to the petition are copies of the Manual; the 12/15/08 letter advising Petitioner of his suspension; the transcript of court proceedings of Petitioner's criminal appearance, wherein he pleads guilty to disorderly conduct; Petitioner's conditional discharge form; and Petitioner's 2/26/09 letter demanding reinstatement.
The Commission has submitted an affidavit from Executive Director Arsenault in response. The Commission claims that, as an auditor, Petitioner was terminable at will, and that accordingly, no hearing was required. Annexed to the affidavit as exhibits (not duplicative of Petitioner's exhibits) are copies of the resolution suspending Petitioner, and the Employee Payroll Notice reflecting Petitioner's termination.
It is well settled that the "[j]udicial review of an administrative determination is confined to the `facts and record adduced before the agency'." ( Matter of Yarborough v. Franco, 95 N.Y.2d 342, 347 [2000], quoting Matter of Fanelli v. New York City Conciliation Appeals Board, 90 A.D.2d 756 [1st Dept. 1982]). The reviewing court may not substitute its judgment for that of the agency's determination but must decide if the agency's decision is supported on any reasonable basis. ( Matter of Clancy-Cullen Storage Co. v. Board of Elections of the City of New York, 98 A.D.2d 635, 636 [1st Dept. 1983]). Once the court finds a rational basis exists for the agency's determination, its review is ended. ( Matter of Sullivan County Harness Racing Association, Inc. v. Glasser, 30 N.Y. 2d 269, 277-278). The court may only declare an agency's determination "arbitrary and capricious" if it finds that there is no rational basis for the determination. ( Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231).
Section II(L) of the Manual provides, in pertinent part,
Officers and employees shall not engage in any conduct, in their public or private lives, which is incompatible or creates the appearance of being incompatible or detrimental to their primary responsibility of rendering unbiased and efficient service as members of a governmental agency.
Section IV of the Manual sets forth the Commission's tenure and grievance procedures for tenured employees. Section IV(A) provides that a "permanent employee," as defined by Section IV(A)(1)(a), "shall not be dismissed from employment or have his or her salary reduced or be otherwise disciplined, except for good sufficient cause or reason and only after a hearing." Section IV(A)(1)(a) defines a "permanent employee" as follows:
. . . any person who has been in continuous employment with the Commission for more than six months on an annual salary basis, and shall not include supervisory, professional and executive personnel. Personnel considered supervisory, professional and executive include, but are not necessarily limited to . . . Accountants.
The court finds that the Commission's decision to terminate Petitioner was supported by a rational basis and was not arbitrary and capricious. It is well settled that an agency has broad power to construe and interpret its own rules, and that the agency's interpretation must be upheld by a reviewing court so long as it is not irrational ( Howard v. Wyman, 28 N.Y.2d 434, 438; Bernstein v. Toia, 43 N.Y.2d 437, 448). The Commission has interpreted "Accountants" in Section IV(A)(1)(a) to include the position of Auditor. Moreover, Section IV(A)(1)(a) explicitly states that the list of non-permanent positions is not an exhaustive one, and it is reasonable to conclude that the Auditor position is a "professional" position which is not afforded permanent employee status.
Indeed, in its 2008-09 Occupational Outlook Handbook, the United States Bureau of Labor Statistics groups the two titles together in an overview titled "Accountants and Auditors" ( see http:www.bls.gov.oco oeos001.htm).
Accordingly, Petitioner was not entitled to a hearing. Nor was it irrational or arbitrary to terminate Petitioner based upon the December 2, 2008 incident since, as an Auditor, Petitioner occupied a position of substantial fiduciary responsibility and public trust.
Wherefore, it is hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.
This constitutes the decision and order of the court. All other relief requested is denied.