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When it comes to being disciplined, New York City firefighters are no different than police officers, an appeals court in Manhattan has ruled. The Appellate Division, 1st Department, ruled 4-1 last week that firefighters punished for improper conduct cannot appeal their sentences to the Civil Service Commission. Like police officers, they must seek review through an Article 78 proceeding in state Supreme Court. The ruling broadly interprets a 1997 decision by the New York Court of Appeals in Matter of Montella v. Bratton, which held that the Civil Service Commission lacked jurisdiction over disciplinary determinations for police officers made under the Administrative Code. The city code specifically limits police officers from appealing a disciplinary action through anything other than an Article 78 proceeding, which challenges a state government action. Such language does not exist for firefighters. Writing in Thomas Von Essen v. New York City Civil Service Commission, Justice Richard T. Andrias said that since the firefighter in this case was disciplined under the city’s Administrative Code, he could not seek relief from the Civil Service Commission. An attorney for the Uniformed Firefighters Association, which filed an amicus curiae brief in the case, said the ruling effectively limits appeal options for all disciplined firefighters, since they are all subject to punishment guidelines under the Administrative Code. A city attorney described the ruling as important because appeals to the Civil Service Commission are usually not subject to further review in the courts. In Von Essen, former firefighter Robert Joel tried to appeal his dismissal from the department to the Civil Service Commission. In 1997, he pleaded guilty to a misdemeanor for calling in two false alarms from a pay phone inside his firehouse in February 1996. The calls were allegedly made at the request of another firefighter who wanted to submit a false claim of being injured in action. Although Joel admitted guilt and cooperated with officials investigating corruption among firefighters, an administrative law judge determined that dismissal was the appropriate sanction for his actions. Under �15-113 of the Administrative Code, firefighters face limited penalty options: reprimand, loss of 10 days pay, or dismissal. After Joel was terminated, he appealed his punishment to the Civil Service Commission. The commission held a hearing to determine whether, in light of the Court of Appeals ruling in Montella, it had jurisdiction to hear Joel’s case. The Civil Service Commission construed Montella narrowly and said it could hear Joel’s appeal. In January 2002, Manhattan Supreme Court Justice Joan A. Madden agreed. She ruled that since the Administrative Code did not expressly limit a firefighter’s appeal options, then the Legislature did not intend to exclude firefighters from civil service review. In reversing Madden’s ruling, the 1st Department said “both the Civil Service Commission and the [trial] court neglected to examine the legislative history of the various statutes and the historical reasons for the Legislature’s different treatment of the Police and Fire Departments and thus misconstrued the statutes.” Justice Andrias said there was no basis for a narrow reading of Montella. While a right to appeal to the Civil Service Commission dates back to 1941 and 1945, the judge said, Administrative Code provisions that grant the fire commissioner exclusive disciplinary authority originated in 1936 or before. A savings clause in Civil Service Law, Andrias said, precludes the repeal or modification of long-standing City Charter and Administrative Code provisions. Michael N. Block of Sullivan Papain Block McGrath & Cannavo represented the firefighters union. He said the ruling would deprive firefighters of a less costly avenue of disciplinary appeal than going to court. Joel represented himself pro se and argued his appeal. The Civil Service Commission, a named defendant in the suit, did not submit a brief or appear for argument. Barry P. Schwartz, from the appeals division of the Corporation Counsel’s Office, said in a statement, “To permit appeals of those determinations to the Civil Service Commission would severely undercut the Fire Commissioner’s power to remove or suspend firefighters given that the Commission can apply a de novo standard of review, rather than one which is deferential toward the Fire Commissioner, and the Commission’s decisions are generally unreviewable in the courts.” Assistant Corporation Counsel Julie Steiner argued the appeal. Justices Joseph P. Sullivan, Ernst H. Rosenberger and David Friedman concurred with Justice Andrias’ opinion. Justice Luis A. Gonzalez dissented without an opinion. However, he agreed with Madden’s reasoning, the 1st Department opinion said.

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