
    [688 NE2d 495, 665 NYS2d 621]
    In the Matter of Karen E. Garcia, Appellant, v William J. Bratton, as Police Commissioner of the City of New York, et al., Respondents.
    Argued September 16, 1997;
    decided October 28, 1997
    
      APPEARANCES OF COUNSEL
    
      Giaimo & Vreeburg, P. C., Kew Gardens (Joseph O. Giaimo and Christopher J. Butler of counsel), for appellant.
    
      Paul A. Crotty, Corporation Counsel of New York City (Fay Ng and Pamela Seider Dolgow of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

On October 14, 1992, petitioner Karen Garcia, a probationary officer in the New York City Police Department, was placed on modified duty pending an internal investigation into alleged misconduct on her part relating to a July 18, 1992 homicide at a Queens nightclub. After investigation of the incident, on December 29 and 30, 1993 the Department preferred charges against her. On January 10, 1994, her employment was terminated.

Petitioner commenced this CPLR article 78 proceeding, contending that because tenure on modified duty was part of her two-year probationary period, she was no longer a probationary employee at the time of her termination and was therefore entitled to a pretermination hearing (Civil Service Law § 75). Supreme Court agreed and ordered her reinstated, but a divided Appellate Division reversed. Because we agree with the Appellate Division majority that petitioner’s time on modified duty did not count as part of her probationary period, we now affirm.

Rule 5.2.8 (b) of the Rules and Regulations of the City Personnel Director provides:

"Notwithstanding the provisions of paragraphs 5.2.1, 5.2.2, and 5.2.8 (a), the probationary term is extended by the number of days when the probationer does not perform the duties of the position, for example: limited duty status, annual leave, sick leave, leave without pay, or use of compensatory time earned in a different job title; provided, however, that the agency head may terminate the employment of the probationer at any time during any such additional period (former 59 RCNY Appendix A, rule 5.2.8 [b]).”

Petitioner asserts that because rule 5.2.8 (b) does not specify modified duty, and because modified duty is different from the enumerated categories, it does not extend the probationary period. The words "for example,” however, signal that the categories set forth in the rule, applicable to all City employees, were merely illustrative and not exclusive (see, Matter of Tomlinson v Ward, 110 AD2d 537, 538, affd for reasons stated 66 NY2d 771). Further, while the period of modified duty may be uncertain in duration — not unlike the examples of limited duty or sick leave — modified duty does not extend the probationary period indefinitely, but only during the actual number of days petitioner remains on such duty.

Respondents’ rational interpretation of the rule comports with the requirement that the probationary period should be extended while probationer "does not perform the duties of the position” (55 RCNY 5.2.8 [b]). As set forth in the New York City Police Department Patrol Guide, the purpose of modified duty is to "assign a uniformed member of the service to non-enforcement duties pending determination of fitness to perform police duties” (New York City Police Department Patrol Guide § 118-12). A police officer placed on modified duty must surrender his or her shield, firearm and identification card, and cannot engage in police enforcement activities (see also, New York City Police Department Patrol Guide § 118-12).

To the extent the officer is thus restricted, he or she is not performing the duties of the position, and the appointing officer is denied the very purpose of the probationary period, which is "to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office” (Matter of Tomlinson v Ward, 110 AD2d, at 538, supra). The restrictions of modified duty deprive the Department of a reasonable opportunity to evaluate a police officer’s ability to perform the complete range of duties of that office.

We cannot agree with the dissent that a probationary employee "is entitled to actual or reasonably discernible notice that * * * modified duty status extends [the] probationary period”. (Dissenting opn, at 994.) No constitutional, statutory or regulatory provision requires such notice. Nor did we find such a right in Tomlinson, where we held that time spent on jury service, although not specifically enumerated in the applicable rules, automatically extended the probationary period of a correction officer. Indeed, rule 5.2.8 (b) explicitly overrides other provisions of the rules cited by the dissent in automatically extending the probationary term so as to assure that the public interest is protected by allowing the City two full years of performance of the duties of the position to assess the merit and fitness of such employees (see also, NY Const, art V, § 6).

Finally, at the time petitioner was placed on modified duty, with full salary and benefits, she could have been suspended or terminated without a hearing and without a stated reason (Matter of Antonsen v Ward, 77 NY2d 506, 512-513; Matter of Talamo v Murphy, 38 NY2d 637, 639). As the Appellate Division majority noted, it "would be incongruous in the extreme to require the Police Department to afford petitioner a hearing now because it chose, instead, to proceed cautiously and to complete its investigation before taking action. As a matter of public policy, the Police Department’s interpretation of rule 5.2.8 (b) is eminently sensible” (Matter of Garcia v Bratton, 225 AD2d 123, 127).

Ciparick, J.

(dissenting). The majority holds that petitioner’s modified duty served to extend her probationary status, by operation of law through an expansive interpretation of rule 5.2.8 (b) of the Rules and Regulations of the City Personnel Director, now the Department of Citywide Administrative Services (55 RCNY 5.2.8 [b]j. The legal effect of such interpretation permits the employer to terminate petitioner without a hearing 3s ¡4 years after her employment began. Because we conclude that petitioner is entitled to actual or reasonably discernible notice that her modified duty status extends her probationary period, and because she did not receive any notice in the instant case, we respectfully dissent.

Petitioner was appointed to the New York City Police Department on April 25, 1990. Like all other police officers joining the Department at that time, petitioner’s employment was conditioned on a two-year probationary period, ending April 24, 1992, during which time she was subject to termination without cause and without a hearing. Pursuant to rule 5.2.8 (a) and (b), petitioner’s probationary period was extended for a period "not exceeding in the aggregate six months”, for days when petitioner was out sick, on vacation, or on limited capacity status. On October 14, 1992, before the end of the extended probationary period, petitioner was placed on "modified duty” status and reassigned to the Police Department’s Motor Transport Division, pending an internal investigation of petitioner’s alleged misconduct on the night of July 18-19, 1992.

Petitioner remained on "modified duty” for the next year, and on December 29, 1993, while still on "modified duty” status, the Department preferred charges and specifications against her pertaining to the July 1992 incident, and subsequently terminated petitioner, without a hearing, on January 10, 1994. Since petitioner ordinarily would have earned tenure and become a permanent employee in October 1992, petitioner could only have been discharged without a hearing if the "modified duty” status served to automatically and continually extend her probation.

Rule 5.2.8 (b) was promulgated under the authority of section 75 of the Civil Service Law, section 891 of McKinney’s Unconsolidated Laws of NY (L 1940, ch 834) and the New York City Charter § 810 et seq. It is evident from the language of section 75 that the Legislature, in enacting the statute, contemplated a system of some reasonable notice and procedural due process for civil servants subject to disciplinary actions and proceedings (see, e.g., Civil Service Law § 75 [2] [entitled "Procedure,” and providing that civil servants who are potential subjects of disciplinary action shall be "notified in advance” of questioning of their right to counsel; also providing that "(a) person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor”]). In general, 55 RCNY 5.2.8 (a) and (b), and 38 RCNY chapter 15, as it relates to Police Department adjudications, adhere to the system of notice and procedural safeguards set forth in section 75.

Rule 5.2.8 (a) provides that the agency may extend an employee’s probationary period, not exceeding six months, only upon written request and with the written consent of the probationer. By providing for the automatic extension of probationary periods "by the number of days when the probationer does not perform the duties of the position,” rule 5.2.8 (b) allows for the automatic extension of probation, without the written consent of the probationer in certain situations effected by the employee, such as absence due to illness, disability, and jury service (see, Matter of Tomlinson v Ward, 110 AD2d 537, affd for reasons stated below, 66 NY2d 771). Thus the employer / agency is not deprived of the opportunity of evaluating its employee during periods of absence, avoiding the absurd situation wherein a probationary period could lapse while an employee is absent from his or her employment and not subject to evaluation. We agree with the majority that this rule protects the public interest by allowing the City a full two-year opportunity "to assess the merit and fitness of such employees”. (Majority mem, at 994.)

The respondent maintains and the majority agrees that while petitioner was on modified duty, the Department was unable to ascertain the fitness of the probationer because she was performing nonenforcement duties. The majority, however, notes that the stated purpose of modified duty within the Police Department is to determine the officer’s fitness to perform police duties quoting from the New York City Police Department Patrol Guide § 118-12. In fact, petitioner was given a satisfactory annúal evaluation by her supervising officer three months after she was placed on modified duty, without making any distinction as to enforcement versus nonenforcement duties.

The Department concedes that the very purpose of modified duty is to enable it to evaluate police officers’ fitness for enforcement duties while on modified duty. It appears then that no policy of enhancing administrative efficiency should be furthered by deeming "modified duty” as within the scope of rule 5.2.8 (b), especially since such a construction simultaneously results in a serious procedural deprivation and prejudice to the employee.

Indeed, the Police Department, here, by its interpretation of rule 5.2.8 (b) allowing for the unilateral automatic extension of a probationary period during a "modified duty” assignment, has frustrated the reasonable expectation of a probationary employee to notice as to when a probationary period ends (see, Matter of Glisson v Steisel, 96 AD2d 83).

The Appellate Division and the majority here have given deference to an agency interpretation of the rule which according to the agency would provide adequate notice. Such interpretation has defined "limited duty status” as used in rule 5.2.8 (b) as including "modified duty,” as described in the Department’s Patrol Guide, and according to the agency provides an employee with sufficient notice of the extension of probation upon being placed on such "modified duty.”

This is clearly contrary to the notice provisions envisioned by the statutes, the Charter and the rules. Rule 5.2.1 (b) as it relates to probationary terms states "Appointees shall be informed of the applicable probationary period. However, such probationary period may be terminated by the city personnel director or by the agency head before the end of the probationary period” (emphasis supplied).

Rule 5.2.2 (b) states "the computation of the probationary period shall be based on the time during which the employee is on the job in a pay status” (emphasis supplied).

Rule 5.2.7 (a) as it relates to termination further states, "At the end of the probationary term, the agency head may terminate the employment of any unsatisfactory probationer by notice to said probationer” (emphasis supplied), and at rule 5.2.7 (c) "the agency head may terminate the employment of any probationer whose conduct and performance is not satisfactory * * * before the completion of the maximum period of probationary service by notice to the said probationer” (emphasis supplied).

Clearly, here, the probationer had no actual notice of when her probationary term would end, nor does the rule provide adequate constructive notice. She could reasonably assume that her probationary term had expired. She was continuously "on the job in a pay status” well after her expected termination date and was never notified otherwise.

Petitioner was given the final medical examination which ordinarily marks the end of the probationary period, and understandably believed her probationary period to be over. There is evidence in the record that, as late as January 15, 1993, well after petitioner was placed on modified duty, the Department itself considered petitioner’s probationary period to be over (see, Annual Performance Evaluation, dated Jan. 15, 1993, identifying petitioner as "PO” [police officer], in lieu of "PPO” [probationary police officer]). It was 11 months later that she was served with charges and specifications — another indicia of permanent employment status — and then ultimately terminated without a hearing.

It would be exceedingly unfair to permit the Police Department to lead the noticeless petitioner to believe that she had gained tenure, and yet in fact keep petitioner on probation indefinitely, as it suited the Department’s purposes, without some reasonable knowledge of its termination date, envisioned and granted by the enabling statutes and the rules.

Accordingly, we respectfully dissent and would reinstate petitioner without prejudice to respondent prosecuting its disciplinary proceeding against her in accordance with appropriate procedures applicable to permanent employees of the New York City Police Department.

Chief Judge Kaye and Judges Titone, Levine and Wesley concur; Judge Ciparick dissents and votes to reverse in an opinion in which Judges Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum. 
      
       Since this proceeding was commenced, the rule was reclassified as rule 5.2.8 (b) of the Department of Citywide Administrative Services (see, 55 RCNY 5.2.8 [b]).
     