Horowitz v. Roche

Fein, J.,

concurs in a memorandum as follows: I concur that remand for a hearing is required in accordance with the principles stated in Matter of Delicati v Schechter (3 AD2d 19) to ascertain whether respondents’ refusal to appoint petitioner to the position of Senior Appraiser was arbitrary or capricious, or whether good and sufficient cause existed not to promote petitioner, the only person who had passed the civil service examination. However, I disagree with the implication in the majority’s memorandum which predicates remand upon the authority of Board of Regents v Roth (408 US 564) and Perry v Sindermann (408 US 593). Those cases require an adversary hearing where "a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him” (Wisconsin v Constantineau, 400 US 433, 437), in that the basis for the discharge, refusal or failure to hire or rehire "might seriously damage his standing and associations in his community”, or would impose "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” (Board of Regents v Roth, supra, p 573.) In the absence of statutory mandate or contract, an adversary hearing is not required as to every determination which implies that the employee is incompetent or otherwise unfit to do the job. Rather, Roth contemplates a hearing only where there is an implication of immorality or dishonesty, a "sufficient stigma to affect rights, liberty and property.” (Matter of Civil Serv. Employees Assn. v Wallach, 48 AD2d 923, 924 [insubordination]; Matter of Jackson v Wallach, 48 AD2d 925 [drunkenness and physical abusiveness]; Matter of Mengrone v New York City Off-Track Betting Corp., 83 Misc 2d 105 [immorality or dishonesty]). As observed in Russell v Hodges (470 F2d 212, 217), referring to Roth (supra) and Perry (supra): "we believe the Court was thinking of something considerably graver than a charge of failure to perform a particular job, lying within the employee’s power to correct”. To the same effect is Matter of Civil Serv. Employees Assn. v Wallach (supra, p 924), wherein the Appellate Division, Second Department, ruled: "With the exception of the apparently single charge of insubordination, the specifications charged the individual petitioners with nonperformance of their work duties, rather than immorality or dishonesty. Thus, those charges did not deprive them of 'liberty’ or ’property’.” Here the refusal to appoint was apparently premised on a letter critical of petitioner’s qualifications and questioning his ability and capacity to perform. There is no stigma of the kind referred to in Roth and Perry. A hearing is nonetheless warranted to determine whether the refusal to appoint petitioner was arbitrary or capricious in the face of the appointment of two others who failed the prescribed examination (see Matter of Delicati v Schecter, supra).