IN RE: Alma AROCA (2019)

Petitioner was appointed as a probationary police officer in July 2012 following her service in the military.  In February 2014, before her two-year probationary period had been completed, petitioner was placed on “restricted duty,” after respondents became aware of facts suggesting she had not disclosed aspects of her history of mental health diagnoses and treatment on application forms.  While in that status, the term of petitioner's probationary period was extended (55 RCNY 5.2.8[b] ).

In August 2014, petitioner was again deployed on military duty and was placed on military leave by respondent New York City Police Department.  While petitioner was overseas, respondent Police Commissioner approved recommendations to terminate her probationary employment, and upon her return from military duty in June 2016, she was informed that her probationary employment was summarily terminated.

Petitioner contends that respondents could not summarily terminate her employment because she was entitled, under Military Law § 243(9), to receive credit for the time she was on military duty.  Crediting her military service as satisfactory probationary service, she had completed her probation before she returned and became entitled to the Civil Service Law protections applicable to tenured police officers, including a hearing before being terminated.

Under New York City personnel rules, “[s]ubject to the provisions of the [M]ilitary [L]aw,” the computation of a probationary period is based on time the employee is “on the job in a pay status” (55 RCNY 5.2.2[b] ).  The personnel rules further provide that, notwithstanding rule 5.2.2, the probationary period will be extended while a probationer “does not perform the duties of the position” (55 RCNY 5.2.8[b] ) for instance, while on limited duty status (see Matter of Garcia v. Bratton, 225 A.D.2d 123, 125, 649 N.Y.S.2d 703 [1st Dept. 1996], affd 90 N.Y.2d 991, 665 N.Y.S.2d 621, 688 N.E.2d 495 [1997];  see also Matter of Bifolco v. Kelly, 79 A.D.3d 544, 912 N.Y.S.2d 402 [1st Dept. 2010], lv denied 16 N.Y.3d 710, 2011 WL 1584491 [2011] ).  These rules are expressly subject to Military Law § 243(9), which provides, in pertinent part, that if a probationary employee is deployed on military duty before the expiration of his or her probationary period, “the time [she] is absent on military duty shall be credited as satisfactory service during such probationary period.”

Military Law § 243(9) is unambiguous in providing that respondents are required to credit the period that probationary officers spend in military service as “satisfactory service” towards completion of the probationary period.  The statute does not distinguish between probationers on restricted or modified duty and those on full duty status at the time of deployment, or give respondents discretion to distinguish between types of probationers (see Matter of Woods v. New York City Dept. of Citywide Admin. Servs., 16 N.Y.3d 505, 509, 922 N.Y.S.2d 873, 947 N.E.2d 647 [2011] ).

Contrary to respondents' contentions, there is no inconsistency between rule 5.2.8(b), which applies when a probationer is still “on the job in a pay status,” but has been placed on restricted duty, and Military Law § 243(9), which applies when a probationer is on military leave.  If the personnel rules were to be read as respondents urge, in a manner inconsistent with the Military Law, then they would be unauthorized and preempted by the state law (see Wholesale Laundry Bd. of Trade v. City of New York, 17 A.D.2d 327, 329–330, 234 N.Y.S.2d 862 [1st Dept. 1962], affd 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623 [1963];  see also Eric M. Berman, P.C. v. City of New York, 25 N.Y.3d 684, 690, 16 N.Y.S.3d 25, 37 N.E.3d 82 [2015] ).

We point out that our decision does not foreclose further action by respondents.