Argued October 19, 2004; decided November 30, 2004

Matter of Felix v New York City Dept. of Citywide Admin. Servs., 309 AD2d 626, reversed.

G.B. Smith, J.

The issue before this Court is whether a person employed by the municipality of [*2]New York City, with permanent, civil service status, can be deemed to have forfeited his employment after failing to establish his city residency following notice of and an opportunity to contest the claimed nonresidency. We conclude that failure to establish residency is a violation of the City's residency requirement, which results in forfeiture of employment, and is not misconduct that would entitle the employee to a preremoval hearing.

On July 30, 1986, Edward I. Koch, then Mayor of the City of New York, signed into law a bill, sponsored at his request by members of the City Council of New York City, that required all nonuniformed employees in mayoral agencies, hired on or after September 1, 1986, to establish and maintain residence within the five boroughs of New York City as a condition of employment (see Transcript of Stenographic Record of Public Hearing on Local Laws [Koch], July 30, 1986, at 1-6, Mayoral Bill Jacket, Local Law No. 40 [1986]).^[FN1] Prior to signing the bill into law, Mayor Koch specifically stated that "[f]ailure to establish or maintain City residence will constitute forfeiture of employment" (Transcript of Stenographic Record of Public Hearing on Local Laws [Koch], July 30, 1986, at 2). Local Law No. 40 (1986) of the City of New York, the law in question, amended sections 12-119, 12-120 and 12-121 of the Administrative Code of the City of New York. New York City Administrative Code § 12-120, as amended, provides:

"Except as otherwise provided in section 12-121, any person who enters city service on or after September first nineteen hundred eighty-six (i) shall be {**3 NY3d at 502}a resident of the city on the date that he or she enters city service or shall establish city residence within ninety days after such date and (ii) shall thereafter maintain city residence as a condition of employment. Failure to establish or maintain city residence as required by this section shall constitute a forfeiture of employment; provided, however, that prior to dismissal for failure to establish or maintain city residence an employee shall be given notice of and the opportunity to contest the charge that his or [*3]her residence is outside the city."^[FN2]

Even those employees who benefit from the protections of Civil Service Law § 75 are subject to New York City's residency requirement.

In August 1993, respondent Felix was hired by appellant New York City Department of Citywide Administrative Services (DCAS) and permanently appointed to the competitive class position of high pressure plant tender. Accordingly, Felix's employment was subject both to New York City Administrative Code § 12-120 and to Civil Service Law § 75. Moreover, in connection with his employment, on or about August 15, 1993, Felix completed, signed, swore to and had notarized a residency form in which he acknowledged that his employment was conditioned on maintaining residence in New York City and that if he failed to remain a New York City resident, he could forfeit his employment.^{[FN3]{**3 NY3d at 503}} [*4]

Approximately nine years after Felix's appointment, DCAS began to suspect that Felix resided in Nassau County, in violation of New York City's residency requirement. In a memorandum, DCAS informed Felix of its suspicion, and directed Felix to attend a meeting on January 23, 2002, at which time he would have an opportunity to contest the allegation. The memorandum stated that if Felix planned to contest the allegation, he should bring documentation demonstrating his New York City residency including deeds and leases for real property, utility bills, his driver's license and vehicle registration, voter registration cards and federal and state tax returns. The memorandum further stated that "[t]ax returns are necessary documentation." Felix was advised that he could bring an attorney or union representative to the meeting.

Felix appeared at the January 23 meeting with a union representative and, in accordance with DCAS procedures, was asked to produce two forms of identification. He produced a New York State driver's license with a Corona (Queens County), New York address and an expiration date of June 3, 2004. DCAS requested additional documents regarding his residency, but Felix said that he did not bring any additional documentation with him. Felix further stated that he was not aware that he was required to be a New York City resident. DCAS then showed Felix the residency form he had completed and sworn to. In order to afford Felix the opportunity to produce additional documentation, DCAS adjourned the meeting for two days.

On January 25, 2002, the meeting reconvened and Felix again appeared with a union representative. This time, however, when asked to produce documentation to establish his place of residence, Felix submitted the following documents:

(1) a letter from his sister, dated January 23, 2002, stating that he lived with her in Flushing (Queens County), New York;

(2) a voter registration card, dated January 23, 2002;

(3) an interim driver's license, issued on January 23, 2002;

(4) a vehicle registration card, issued on January 24, 2002;{**3 NY3d at 504}

(5) a New York State insurance identification card pertaining to an insurance policy with an effective date of January 23, 2002;^[FN4]

(6) a letter from Felix's union, dated January 24, 2002, stating that according to its records, Felix resided in Kew Gardens (Queens County), New York;

(7) a delinquency notice from an out-of-state dentist's office, dated January 24, 2002, reflecting that Felix's address was in Flushing, New York; and

(8) a W-2 form and federal income tax return for the tax year 2000 which both indicated that Felix resided in Valley Stream (Nassau County), New York.

In a letter dated January 28, 2002, DCAS advised Felix that, based on its review of the submitted documentation, it had determined that the evidence submitted by Felix did not credibly establish that he maintained residence in New York City as required by New York City Administrative Code § 12-120. DCAS concluded that all of the documentation reflecting Felix's residence in New York City was created after the January 23, 2002 meeting had adjourned for the sole purpose of establishing a New York City residence. Accordingly, DCAS found that Felix violated the residency requirement for his job and was deemed to have forfeited his position. He was immediately dismissed from his employment.

Felix filed a CPLR article 78 proceeding to challenge his dismissal, arguing that he was entitled to reinstatement with back pay because he was discharged without a preremoval hearing under Civil Service Law § 75 (1).^[FN5] Supreme Court granted Felix's petition. The [*5]Appellate Division affirmed, and this Court granted leave to appeal.

A municipal employee must be afforded procedural due process before he or she is dismissed from employment for violating New York City's residency requirement. Accordingly, this Court {**3 NY3d at 505}must determine two questions: first, whether Felix's nonresidency was a forfeiture of employment or misconduct for which he was entitled to a preremoval hearing and second, did the "notice of and the opportunity to contest the charge" procedure set forth under New York City Administrative Code § 12-120 satisfy due process.

We note at the outset that the act of failing to maintain one's residence within the municipality is separate and distinct from an act of misconduct by a municipal employee in the performance of his or her work. Failure to maintain residence renders an individual ineligible for continued municipal employment under New York City Administrative Code § 12-120, while an act of misconduct invokes Civil Service Law § 75 disciplinary procedures, including a preremoval hearing if removal of the municipal employee is contemplated (see e.g., Mandelkern v City of Buffalo, 64 AD2d 279 [4th Dept 1978]). In Mandelkern, the Appellate Division, Fourth Department held that a City of Buffalo ordinance setting forth residency requirements for city employees did not violate Civil Service Law § 75 (1). In so holding, the Court noted that residency requirements define eligibility for employment, not misconduct to which civil service protections would apply. The Court stated as follows:

"[t]he local legislation and the Civil Service Law have different purposes. The [local legislation] is designed with the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]. When so viewed, it is clear that residence is a consideration unrelated to job performance, misconduct or competency. It is a qualification of employment, . . . and a qualification which the city may impose if it chooses to do so without running afoul of the Constitution or general laws of the State. The Civil Service Law, on the other hand, prescribes the procedures for removal of a protected employee charged with delinquencies in the performance of [*6]his job. It has nothing to do with eligibility for employment" (Mandelkern, 64 AD2d at 281).^[FN6]

Similarly, the instant residency requirement has a different purpose {**3 NY3d at 506}than Civil Service Law § 75 (1) (see n 1 [at 501] for purpose of New York City's residency requirement). Accordingly, the procedural due process afforded under Civil Service Law § 75 (1), i.e., a preremoval hearing, is not necessarily required for dismissals pursuant to New York City Administrative Code § 12-120 (see e.g., Mandelkern, 64 AD2d at 281; Schirmer v Town of Harrison, 1999 WL 61843, 1999 US Dist LEXIS 1292 [SD NY, Feb. 10, 1999]).^[FN7]

We next address the question whether the procedure itself comported with state and federal due process requirements. The instant residency requirement provides that a municipal employee "shall be given notice of and the opportunity to contest the charge that his or her residence is outside the city" (New York City Administrative Code § 12-120). To determine whether this procedure satisfied due process here, we necessarily take into account that Felix was required and/or requested to produce various documents, e.g., tax documents, driver's license and voter registration card, in order to establish a New York City residence. Documents such as these need not be subjected to the adversarial testing of a hearing in order for the municipality to determine whether a municipal employee has established that he or she resides in New York City. The municipality need only review each document to make that determination. As such, we conclude that the "notice of and the opportunity to contest the charge" procedure set forth in New York City's residency requirement satisfies due process.

Here, Felix was afforded the requisite due process; however, the documents he submitted did not establish that his current residence was in New York City. To the contrary, Felix submitted a driver's license with a New York City address he later admitted was no longer [*7]current, seven documents that were clearly created after the January 23 meeting for the sole purpose of establishing that Felix's residence was in New York City, and most significantly, two tax documents which established that Felix's residence was outside of New York City. Thus, DCAS correctly determined that Felix forfeited his position and that dismissal was warranted.{**3 NY3d at 507}

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

New York City Administrative Code § 12-121 sets forth exceptions to New York City's residency requirement. Felix does not contend that he falls within any of the section 12-121 exceptions.

Footnote 3: Felix's residency form states, in pertinent part:

"I, Francisco Felix, am or expect to be employed by the above agency or department on the date of appointment and in the position indicated above. I hereby certify that I reside at the above address which is in The City of New York. . . .

"I hereby agree that I will notify the head of the above agency and the Department of Personnel of The City of New York prior to any change of residence by me or my spouse during such time as I remain employed by The City of New York. I understand that if I fail to remain a resident during the period of my employment with The City of New York I may forfeit my employment unless I have been granted an exemption from the residency requirements in accordance with the Mayoral Directive on Residence or Section 12-119 et seq. of the Administrative Code."

Footnote 4: Documents (2)-(5) indicated that Felix's address was in Flushing, New York.

Footnote 5: Civil Service Law § 75 sets forth a procedure under which certain employees, including those with permanent, civil service status, may be removed or subjected to other disciplinary action for misconduct or incompetency. Civil Service Law § 75 (1) provides, in pertinent part:

"A person [holding a position by permanent appointment in the competitive class of the classified civil service] shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section."

Footnote 6: It should be noted that Mandelkern was cited in a memorandum from the City of New York's Law Department advising the then Deputy Mayor for Operations that New York City can enact a residency law (see Mem from City of NY Law Dept, Nov. 4, 1985, at 9, Mayoral Bill Jacket, Local Law No. 40 [1986]).

Footnote 7: The United States Supreme Court has stated that "[a] procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case" (Bell v Burson, 402 US 535, 540 [1971]).