Fraud Blocker

    ‘Tis the season for Suffolk County Police Academy recruitments, so it’s a good time to brush up on the options available when you are denied from a civil service position.

     After you score exceptionally well on the written qualifying Suffolk County police examination, there are several stages you must still pass through before you are offered admittance into the Suffolk County Police Academy. You must successfully pass the physical agility test, a physical exam, an extensive background check, a psychological examination, and a polygraph test, among others. But what happens when you are notified that you failed one of the tests and are no longer eligible to become a Suffolk County Police Officer?

     You still have options. You can initiate an Article 78 Proceeding in New York State Supreme Court, and request that a judge issue an order requiring the Suffolk County Police Department to reinstate you to the eligible candidate’s list because their decision was not supported by substantial evidence, was affected by an error of law, was arbitrary or capricious, or was an abuse of discretion.

     Such a scenario happened recently to one particular candidate. He was given a mandatory pre-employment psychological examination administered by a forensic psychologist on behalf of the Suffolk County Police Department. The psychologist found that the candidate was not qualified for the position of Suffolk County Police Officer, concluding that:

     “Based on this psychological evaluation, this candidate is NOT RECOMMENDED for a Police Officer position with the Suffolk County Police Department. One issue is the candidate’s defensiveness. This was found not only on all three of the psychological tests but, more importantly, evasiveness was evident during the clinical assessment and was also reflected in his gross disregard of the structure required in the personal history questionnaire (the omission of critical information). This sort of responding also raised the possibility of deliberate deception in his part. Moreover, he showed an attitude of glibness and overconfidence during the interview that was consistent with the observations of defensiveness, and this reflects upon an inability on the part of the candidate to examine himself realistically. He appears to represent a risk for lack of candor, for a person who will have difficulty conforming to a quasi-military authority structure, and for someone who will have difficulty interacting effectively and appropriately with citizens.”

     The candidate was notified by letter four days after his exam that he was determined by the Suffolk County Police Department to not be qualified as a result of the psychological examination. He filed a notice of appeal with the Civil Service Commission on his own, and testified at a hearing without an attorney before the Appeals Committee. He was then again notified by letter from the Suffolk County Department of Civil Service Chief of Examinations that his “not qualified” determination had been affirmed, i.e., he was no longer considered an eligible candidate to become a Suffolk County Police Officer. The Appeals Committee found that:

     “Overall, we are concerned that although the candidate appears to be performing at a high level over the past two review periods, the early adaptation to the job was quite poor. We are concerned that he may experience similar adaptive difficulties as a new officer in Suffolk County. In addition, we would be more comfortable if the poor evaluations were further in the past with a longer history of positive evaluations following. Further, in the absence of valid psychological test results, we do not have an important category of data with which to make a confident affirmative decision. We find [candidate] Not Qualified for Suffolk County Police Officer.”


         If you are still disqualified after an appeal or the issuance of a final agency decision, you can file an Article 78 Proceeding in New York State Supreme Court, and ask a judge to issue an order compelling the Suffolk County Police Department to reinstate you to the list of eligible candidates.


The Facts:

         This candidate hired a lawyer (not me) AFTER his appeal to file an Article 78 Proceeding on his behalf, claiming that the decision reached was arbitrary and capricious, and sought to be reinstated to the Suffolk County Police Officer eligible list. He claimed that:

  • The Suffolk County Police Department violated the requirements of Civil Service Law § 50(4)(h), in that it failed to afford the candidate an adequate written statement of the reasons for his disqualification;
  • And the decision was improper since the Suffolk County Police Department considered past psychological evaluations conducted by the New York City Police Department in determining it’s decision.

The Law:

         In a proceeding seeking judicial review of administrative action, the court must determine whether there is a rational basis for the decision or whether it is arbitrary and capricious (Matter of Warden v Board of Regents, 53 NY2d 186, 194, 440 NYS2d 875, 881 [1981]). The determination of responsible local officials in the affected community will be sustained if it has a rational basis and is supported by substantial evidence (Matter of Fuhst v Foley, 45 NY2d 441, 410 NYS 2d 565 [1978]).

         An appointing authority has wide discretion in determining the fitness of candidates (Winnenar v County of Suffolk, 13 Ad3d 382, 785 NYS2d 524 [2d Dept., 2004]). This discretion is particularly broad in the hiring of law enforcement officers to whom high standards may be applied (Winneaar, supra: Matter of Verme v County of Suffolk Dept. Of Civil Service, 5Ad3d 498, NYS2d [2d Dept., 2004]). The Court will not interfere with the Administrative determination provided it is neither irrational nor arbitrary (Matter of Needlenian v County of Rockland, 270 Ad2d 423, NYS2d [2d Dept., 2000]).


         In this case, the court held that the Suffolk County Police Department did not act irrationally or arbitrarily in its determination that this particular candidate was unqualified. A court review of the procedures utilized by the Suffolk County Police Department revealed that the candidate was given a written statement of the reasons why he was disqualified, and was given reasonable opportunity to contest the findings during the appeals process, which he failed to do so.

         Failure to timely plead, object or appeal decisions will detrimentally impact the results of your appeal. Unfortunately for this candidate, he was forced to find another career.

James D. Murtha, Esq.

Author James D. Murtha, Esq.

I am a Managing Member-Lawyer at the Murtha Law Firm, LLC, and I initiate Article 78 Proceedings in Suffolk County and Nassau County, Long Island, New York. Contact me anytime, with any questions you may have, and I can help you.

More posts by James D. Murtha, Esq.

Join the discussion 2 Comments

  • Grace Califea says:

    Concerning a story about Nancy Genovese being arrested and harrased by Suffolk County and Southampton Town Police about an incident at the Gabreski Airport, I want to know if this story is true? I recieved it on my facebook page and it is so amazingly bizarre- I thought to ask the Law Firm that is to be representating her.
    Thank you, Grace Califea

  • Paul says:

    How is it that Nassau and Suffolk county police have the right to override HIPAA laws in requiring applicants (for pistol licenses) to provide information on medications they are taking and have taken. This is not a requirement of the standard NY State application and it violates dr/pt privacy.

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