Matter of Pereira v Nassau County Civ. Serv. Commn.
Annotate this CaseDecided on June 14, 2010
Supreme Court, Nassau County
In the Matter of the Application of Victor Pereira, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules,
against
Nassau County Civil Service Commission, SCOTT M. DAVIS, in his capacity as Commissioner of the Nassau County Civil Service Commission, JAMES F. DEMOS, in his capacity as Commissioner of the Nassau County Civil Service Commission, JOHN J. SENKO, in his capacity as Commissioner of the Nassau County Civil Service Commission, EDWARD P. MANGANO, in his capacity as County Executive of the County of Nassau and THE COUNTY OF NASSAU, Respondents
1108/10
Law Offices of Wayne J. Schaefer, LLC - Attorneys for Petitioner
John Ciampoli, Esq., Nassau County Attorney - Attorney for all Respondents
Thomas Feinman, J.
The petitioner, by way of petition and amended petition, moves for an order pursuant to CPLR §§7803(3) and/or 7803(4) for a finding, or determination, that the determination of the [*2]respondent, Nassau County Civil Service Commission, (hereinafter referred to as the "Commission"), as initially set forth in the letter of the Commissioner to petitioner, dated September 15, 2009, and reaffirmed in the letter of Karle Kampe, Executive Director, NCCSC to petitioner dated September 15, 2009, disqualifying him from Police Officer Examination No. 7000 was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence. The respondent submits an affirmation in support of the respondent's verified answer. The petitioner submits a reply affidavit.
The petitioner was extended a conditional offer of employment after taking a written examination by the Commission for the position of Police Officer, being put on a certified list of eligible candidates, and after successfully completing a background investigation. The petitioner's conditional offer of employment was subject to a physical examination. As a candidate, the petitioner, who was within the age group of 30 to 39, was required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, the 1.5 mile run. The petitioner took the physical exam test on August 28, 2009. The proctor who monitored the test determined that the petitioner only completed 28 sit-ups in the necessary and correct form, and therefore, the petitioner was disqualified from further evaluation for the position of Police Officer. The petitioner maintains that he completed 44 sit-ups.
The petitioner argues that the respondent failed to properly administer the test as the respondent failed to provide "qualified trainers" to render a physical fitness screening test. As a result, petitioner provides that a number of irregularities occurred, including the proctor's failure to position himself in front of the petitioner during the administration of the sit-up component, and decision to verbally call out "voided" sit-ups while seated in a chair next to the petitioner, instead of standing in front of the petitioner as such procedure was set forth in a video provided by the Commission.
Sergeant Michael Savino, employed with Nassau County Police Department for 24 years, oversaw the administration of the August 28, 2009 physical examination for police officer candidates. Mr. Savino, by way of affidavit, provides that proctors are fully informed of the test protocol and that Mr. Savino found that the implementation of the test protocol on August 28, 2009 was satisfactory. Mr. Savino avers that proctors count correctly performed sit-ups and any "voided" sit-ups are verbally conveyed to the candidates, in compliance with the fitness test instructions given immediately before the administration of the examination. Additionally, Mr. Savino provides that the Commission's physical test protocol does not provide for any defined rest periods between test elements.
Karle Kampe, Executive Director of the Commission, by way of affidavit, provides that he has personal knowledge of the qualifications, training, selection and use of proctors for the police officer candidate physical fitness test, and that the exam monitors for the August 28, 2009 [*3]physical exam. Mr. Kampe avers that monitors for the sit-up portion of the fitness test have all worked at least fifteen years prior to the exam, on behalf of the Commission.
The petitioner suggests that the proctor who administered the "sit-up" test failed to use the "hand wave" signal for "voided" sit-ups, as shown in the demonstration video. The respondent submits that the "hand wave" signal for an incorrectly performed sit-up is not used during the test, but rather, the proctor calls out "voided" sit-ups. The demonstration video provided to candidates prior to the actual physical fitness screening test is provided to candidates so that they can familiarize themselves with the basic test components, and is meant for general demonstration. The Commission submits that candidates are specifically told that proctors will be counting aloud push-ups and sit-ups and that the proctor's count constitutes the official count for scoring. The Commission provides that the demonstration video is narrated, and the use of "hand waves" are utilized not for the benefit of the candidate shown in the video but for the benefit of the viewer.
The instant proceeding challenges the determination of the respondent. The determination of the respondent, an agency, is reviewed under the "arbitrary and capricious" standard of CPLR §7803(3). (Matter of Sasso v. Osgood, 86 NY2d 374). In applying this standard, a determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith." (Matter of Cowan v. Kern, 41 NY2d 591.) "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." (Matter of Pell v. Board of Education, 34 NY2d 222). In an Article 78 proceeding, this Court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions. (Jennings v. NYSOMH, 90 NY2d 227; Levandusky v. One Fifth Avenue Apartment Corp., 75 NY2d 530).
Here, the respondent's determination was not arbitrary and capricious and had a rational basis for its determination.
In light of the foregoing, the petition is denied and therefore, the instant proceeding is dismissed.
E N T E R :
________________________________
J.S.C.
Dated: June 14, 2010
[*4]
cc: Law Offices of Wayne J. Schaefer, LLC
Nassau County Civil Service Commission
Scott M. Davis, Commissioner
James F. Demos, Commissioner
John J. Senko, Commissioner
Edward P. Mangano, County Executive
John Ciampoli, Esq., Nassau County Attorney
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