The opinion of the court was delivered by: Alice Schlesinger, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This Article 78 proceeding commenced by Matthew Silberzweig, a former employee of the Department of Sanitation, against the Sanitation Commissioner presents an interesting question: Was it arbitrary and capricious and/or an abuse of discretion for the Commissioner to deny Silberzweig's application for reinstatement to employment, when Silberzweig was discharged based on his absence from work without leave (AWOL) due to an arrest, and he was subsequently acquitted of all charges related to the arrest?
On or about May 21, 2001, petitioner Matthew Silberzweig was appointed from a competitive Civil Service list to the title of Sanitation Worker. But for a six-month period in the latter half of 2003 when he was temporarily laid off due to a reduction in force, Silberzweig was continuously employed by the Department of Sanitation until his employment was terminated on December 31, 2007.
Silberzweig's work record was far from pristine. Over the course of six years, he was charged with various acts of misconduct and repeatedly disciplined. The conduct which had led to the prior disciplinary action ranged from relatively minor infractions, such as failing to safeguard the Department's Telephone Order Book, to a more serious charge based on Silberzweig's conviction for Forgery in the Third Degree based on his unauthorized use of Department stationery to create a forged letter to participate in a Sheriff's car auction. The disciplinary penalties imposed for these various prior infractions ranged from a written reprimand to two suspensions for a period of weeks without pay. However, at no point over the six-year period did the Commissioner find Silberzweig's conduct worthy of discharge until the incident at issue herein.
The incident which led to Silberzweig's discharge relates to his arrest on August 1, 2007 on a charge of Conspiracy to Commit Murder for Hire in the Eastern District of New York. Upon arraignment, Silberzweig was held without bail and remanded to the Metropolitan Detention Center in Brooklyn pending trial. From February 4 through 13, 2008, Silberzweig was on trial before the Honorable Sandra Towns in the Eastern District. On February 13, 2008, Silberzweig was acquitted of all the charges and released. (See Exh. B to Petition).
Shortly after the August 1 arrest, on August 8, 2007, Sanitation issued a complaint against Silberzweig for being AWOL for five days from August 2-8, 2007. On October 29, 2007 the complaint was amended to state: "Since on or about August 2, 2007, until present, the Respondent Matthew Silberzweig has been continuously absent without authorization and has failed to contact the Department to resign or resolve his AWOL status." (Answer, Exh. 16).*fn1
According to the Department, Silberzweig was given a full and fair opportunity to be heard before his employment was terminated while he was in prison. By letter dated September 24, 2007 mailed to Silberzweig's home address, Sanitation advised Silberzweig that he had been charged with a violation of Rule 1:4: "Employees may not be absent without authorization." (Answer, Exh. 17). The letter further stated that a hearing was scheduled for October 31, 2008 and that it might proceed without Silberzweig should he fail to appear.
By letter dated September 27 mailed to the prison, Sanitation sent Silberzweig resignation forms and a self-addressed envelope. The letter further advised Silberzweig that, should he choose not to resign, a hearing would proceed on the AWOL charge on October 31. (Answer, Exh. 18).
Silberzweig chose not to resign and, because he was being held without bail, he could not and did not appear at the hearing on October 31. The hearing was adjourned to November 30 to give the Department an opportunity to serve an amended complaint extending the charged AWOL period, and Silberzweig was notified by letter sent to his home. (Answer, Exh. 20). As he was still in prison, Silberzweig did not appear on November 30, and the hearing proceeded before ALJ Salzman without any appearance on Silberzweig's behalf.
At the November 30 hearing, the Department introduced evidence of Silberzweig's absence from work without permission. ALJ Salzman placed her decision on the record at the conclusion of the hearing. (Answer, Exh. 21). The ALJ found that the Department had proven the misconduct charged: "He [Silberzweig] has been continuously absent without authorized leave since August 2, 2007" (p. 13, l. 24-26). Citing cases for the proposition that "an employee's incarceration is actionable as an absence without leave" (p. 13, l. 27-33), the ALJ found Silberzweig liable for the misconduct charged and recommended the penalty of termination of employment (p. 13, l. 4-6, 15-17). On December 31, 2007, Commissioner Doherty approved the recommendation and terminated Silberzweig's employment. (Answer, Exh. 23, 24).
As soon as Silberzweig was acquitted of the criminal charges and released from prison, his counsel wrote to the Commissioner by letter dated February 27, 2008 advising the Department of the acquittal and requesting Silberzweig's reinstatement. (Answer, Exh. 25). The Commissioner, through counsel, responded by letter dated March 7, 2008, simply stating that the request had been denied. (Answer, Exh. 27). This Article 78 proceeding ensued. While Silberzweig does not ...