Causal Nexus and Finality of Consent Awards: Third Department Limits “Removal for Cause” Decertification under 9 NYCRR 6056.2(h)

Introduction

In Matter of Ferretti v. New York State Division of Criminal Justice Services, 2025 NY Slip Op 06000 (3d Dept Oct. 30, 2025), the Appellate Division, Third Department, addressed a pivotal question under New York’s police officer decertification regime: when does a resignation constitute a “removal for cause” that permits permanent invalidation of a police officer’s Basic Training Certification under General Municipal Law § 209‑q(1)(b‑1) and 9 NYCRR Part 6056?

The case arose after the Glenville Police Chief initially reported Officer Benjamin Ferretti’s departure as a standard resignation, then months later asked the Division of Criminal Justice Services (DCJS) to reclassify it as a “for cause” separation, triggering immediate invalidation of his certification. DCJS affirmed the “for cause” designation after an inaccuracy review, prompting an Article 78 challenge.

The Third Department held that DCJS’s determination was arbitrary and capricious because it lacked a rational factual basis to conclude that Ferretti’s resignation was “subsequent to and in connection with allegations of misconduct” within the meaning of 9 NYCRR 6056.2(h)(2)(b), particularly where the prior disciplinary matter had been fully resolved by a consent award restoring the officer “in good standing.” The court simultaneously clarified that DCJS—not the employing municipality—is the proper respondent in Article 78 challenges to such decertifications.

Summary of the Opinion

Proper party: The court affirmed dismissal as to the Town of Glenville, Glenville Police Department, and the Police Chief. DCJS made the final and binding administrative determination after conducting the review under 9 NYCRR 6056.7. Thus, DCJS was the proper party to the Article 78 proceeding.
Standard of review: Because no hearing was held, the court reviewed for whether DCJS’s determination was arbitrary and capricious, lacked a rational basis, or was affected by an error of law.
Interpretation of the regulation: DCJS’s reading of 9 NYCRR 6056.2(h)(2)(b) to require a “causal nexus” between misconduct allegations and the officer’s subsequent separation is facially rational and entitled to deference. But DCJS’s application here was irrational on the record.
Key holding on “for cause”: Where a disciplinary matter has been fully resolved by a consent award reinstating the officer in good standing, and the officer demonstrably returned to work, a subsequent resignation cannot be deemed “in connection with” the prior allegations merely because the officer disliked an alternate assignment that flowed from the resolution. Treating any resignation following any disciplinary consequence as “for cause” is irrational and would eviscerate the finality of consent awards.
Remedy: The judgment was modified to annul DCJS’s July 13, 2023 determination and remit for further proceedings consistent with the decision.

Detailed Analysis

The Regulatory Framework and the 2021 Amendments

New York’s decertification framework authorizes DCJS to permanently invalidate a police officer’s Basic Training Certification upon an officer’s “removal for cause.” General Municipal Law § 209‑q(1)(b‑1); 9 NYCRR 6056.4(f). Employers must report reasons for separation, and if reported as “for cause,” the certificate is “immediately” invalidated pending review. 9 NYCRR 6056.4(e); Executive Law § 845(2)(b).

The dispositive definition here is 9 NYCRR 6056.2(h)(2)(b): “Removal for cause” includes an “interruption in service” by reason of a resignation “subsequent to and in connection with allegations of misconduct… which are known or should be known to the employer… or [that are] being investigated by another agency or entity.”

Before October 16, 2021, the definition hinged on a resignation “while a disciplinary process has commenced… which may result in removal.” 9 NYCRR 6056.2 former (g). In Matter of Kitto v City of Albany, N.Y. Dept. of Police, 213 AD3d 1165 (3d Dept 2023), the Third Department implied that, under the former rule, a resignation needed to occur while charges were still pending. The 2021 amendments broadened the language to “subsequent to and in connection with,” but Ferretti confirms that the broadened language still demands a rational, fact-based causal nexus—more than mere temporal proximity or attenuated linkage via incidental consequences of resolved allegations.

Precedents and Authorities Cited

Matter of Andryeyeva v New York Health Care, Inc., 33 NY3d 152 (2019): Courts defer to an agency’s rational interpretation of its own regulations within its expertise.
Matter of Peckham v Calogero, 12 NY3d 424 (2009): Defines “arbitrary and capricious” as action taken without sound basis in reason or regard to the facts.
Matter of LL 410 E. 78th St. LLC v DHCR, ___ NY3d ___, 2025 NY Slip Op 01672 (Mar. 20, 2025): Even with broad discretion, an agency must act rationally.
Matter of Murphy v DHCR, 21 NY3d 649 (2013); Merrick Auto Serv., Inc. v Grannis, 82 AD3d 895 (2d Dept 2011); Matter of Bruemmer v Vecchio, 93 AD2d 863 (2d Dept 1983): Illustrate the rational basis requirement and arbitrary-and-capricious review.
Matter of Kitto v City of Albany, N.Y. Dept. of Police, 213 AD3d 1165 (3d Dept 2023) and Matter of Aufiero v DCJS, 173 AD3d 1320 (3d Dept 2019), lv denied 34 NY3d 912 (2020): Contextualize the prior “while pending” definition of removal for cause and its limits.
Matter of Coney Is. Preparatory Pub. Charter Sch. v NYSED, 241 AD3d 57 (3d Dept 2025) and Matter of Bosco v McGuire, 111 AD3d 931 (2d Dept 2013): Support the proper-party analysis—challenge lies against the agency issuing the final decision.
Statutes and regulations: General Municipal Law § 209‑q(1)(b‑1); Executive Law § 845(2)(b), (3)(b); 9 NYCRR 6056.2(h), 6056.4(d)-(f), 6056.7.

The Court’s Legal Reasoning

DCJS offered a plausible, generally deferential interpretation: “in connection with” requires a causal nexus between the allegations of misconduct and the officer’s separation. The Third Department accepted that interpretive frame but invalidated its application to these facts as irrational and unsupported by the record.

Key factual anchors compelled that result:

Finality of the consent award: The consent award explicitly provided that, after a 120‑day suspension without pay, Ferretti would be “reinstated full time and in good standing,” subject to the Chief’s discretion to assign alternate duties. This resolved the charges without further discipline or pending adjudication.
Return to duty: Documentary evidence (attendance reports, pay stubs, and a department-wide email from the Chief confirming full pay and benefits) demonstrated that Ferretti returned to work—albeit remotely—for multiple days after the suspension and before resigning.
Contemporaneous classification: Immediately after the resignation, the Chief reported a “standard resignation,” with no mention of a “for cause” separation—only months later did he seek to recast the separation and to decertify, apparently after learning that Ferretti had applied for another law enforcement position.
No written resignation agreement: Allegations that Ferretti agreed to resign as part of the disciplinary resolution or not seek employment in Schenectady County were not reflected in the consent award.

Against that backdrop, DCJS’s conclusion that the resignation was “subsequent to and in connection with” the misconduct allegations lacked a sound basis in reason. The court underscored two dangers in DCJS’s theory:

Overbreadth: If any resignation causally linked to any consequence of past misconduct (such as an alternate assignment) qualifies as “for cause,” then even years-later resignations could be relabeled “for cause,” detaching the definition from its mooring to the underlying allegations and eroding predictability.
Evisceration of settlements: Allowing decertification based on consequences of a fully resolved disciplinary matter would nullify the value of consent awards, particularly where the officer waived a hearing in exchange for reinstatement in good standing and no notice of decertification risk upon future resignation appeared in the award.

The court also highlighted that DCJS did not adequately grapple with indications of factual inaccuracy (e.g., the Chief’s incorrect assertion that Ferretti never returned to duty) and potential retaliatory animus, given the timing and the initial “standard resignation” report.

Taken together, those features required annulment under arbitrary-and-capricious review. While acknowledging the 2021 broadened phrasing in the regulation, the Third Department insisted on a genuinely causal connection rooted in unresolved or contemporaneous misconduct—not merely a connection through downstream, collateral employment issues after the allegations were fully settled.

Proper Parties and Procedural Posture

The court rejected the argument that the Glenville respondents were necessary parties. Although the Police Chief’s “for cause” report triggers immediate invalidation under 9 NYCRR 6056.4(e), DCJS subsequently conducted a merits review under 9 NYCRR 6056.7 and issued the final, binding determination that sustained the “for cause” status. In this posture, DCJS was the proper respondent because its decision “caused petitioner’s injury,” not the municipality’s initial notification.

Remedy and Scope of Remand

The court modified Supreme Court’s judgment by annulling DCJS’s July 13, 2023 determination and remitting for proceedings consistent with the opinion. Practically, remand requires DCJS to correct the record if, consistent with the court’s directives, the agency cannot rationally sustain a “for cause” designation on these facts. The opinion does not foreclose DCJS from applying the regulation properly in other cases; it requires that any “for cause” decertification rest on an adequately supported causal connection to misconduct allegations, not on attenuated consequences of a resolved matter.

Impact and Practical Implications

For DCJS

Heightened rigor in 6056.7 reviews: When employers seek to reclassify a separation as “for cause,” DCJS must test assertions against contemporaneous documents (settlement terms, payroll records, attendance logs, prior HR notices) and resolve material inconsistencies.
“Causal nexus” is fact-intensive: DCJS should articulate how unresolved allegations or active investigations precipitated the separation. Temporal proximity alone—or linkage via after-effects of a settled matter—will not suffice.
Avoid undermining consent awards: Where a consent award restores an officer in good standing and the officer returns to work, DCJS should be wary of employer attempts to use post-settlement consequences to revive “for cause” decertification.

For Municipal Employers and Police Chiefs

Accuracy at the time of separation matters: The initial classification (e.g., “standard resignation”) and the contemporaneous documentation can be decisive. Post hoc recharacterizations require robust, verifiable bases and will be scrutinized.
Settlement drafting: If a separation or employment restriction (such as a no-rehire or geographic limitation) is part of a disciplinary resolution, it must be expressly memorialized. Unwritten side understandings carry little weight against the text of a consent award.
Assignments and CBAs: Reassignments used to implement discipline can be constrained by collective bargaining agreements. If a CBA states reassignments are not disciplinary, employers cannot later characterize such reassignments as disciplinary consequences to support “for cause” reporting.

For Officers and Unions

Protect the finality of consent awards: This decision vindicates the expectation that a consent award restoring good standing resolves the disciplinary matter. Officers who forgo hearings in reliance on such finality gain a measure of protection from later decertification attempts premised on resolved allegations.
Documentation is key: Maintain payroll, attendance, and communication records demonstrating return to duty. Such records can rebut claims that a resignation immediately followed unresolved charges.
Prompt challenges: Because “for cause” reporting triggers immediate invalidation, prompt resort to the 9 NYCRR 6056.7 inaccuracy process—and, if necessary, Article 78 review—is critical.

For Courts and Practitioners

Scope of “in connection with” post‑2021: Ferretti signals that the 2021 broadening does not authorize an indefinite tail of “connection” via collateral consequences. Practitioners should focus on whether unresolved or contemporaneous allegations precipitated the separation.
Record-based agency deference: Deference to DCJS’s interpretation does not insulate factually unsupported applications. Building a robust administrative record (or exposing its gaps) remains outcome-determinative under arbitrary-and-capricious review.
Party alignment: In decertification challenges, name DCJS as the primary respondent. Municipal employers may be peripheral unless separate relief is sought against them for their own final actions.

Complex Concepts Simplified

Article 78 proceeding: A special state-court process in New York to challenge actions of administrative agencies and certain public bodies. The court reviews whether the decision was lawful, rational, and procedurally proper.
Arbitrary and capricious: A legal standard asking whether the agency acted without a sound reason or ignored critical facts. It is deferential but not toothless.
Agency deference: Courts often accept an agency’s reasonable reading of its own regulations, especially in technical areas. But deference does not excuse irrational applications to the facts.
“Removal for cause” (9 NYCRR 6056.2(h)): A separation that permits decertification, including resignations “subsequent to and in connection with” misconduct allegations known to the employer or under investigation.
Consent award: A negotiated resolution of disciplinary charges in arbitration that sets out agreed consequences (e.g., suspension) and typically restores the employee to work under stated terms.
6056.7 inaccuracy review: The DCJS process to correct materially inaccurate employer reporting of the reason an officer ceased to serve. DCJS may amend the record and must ground its decision in the evidence presented.
Immediate invalidation upon “for cause” report: When an employer reports “for cause,” the certificate is immediately invalidated (9 NYCRR 6056.4[e])—subject to DCJS review and judicial oversight.

Conclusion

Ferretti draws an important boundary around New York’s post‑2021 “removal for cause” decertification regime. While DCJS may reasonably require a “causal nexus” between misconduct allegations and an officer’s separation, that nexus must be real, demonstrable, and tied to unresolved or contemporaneous allegations—not simply to downstream employment consequences of a settled case. The decision also protects the integrity of consent awards that restore officers to good standing, ensuring they are not undermined by later, unsupported “for cause” relabeling.

Equally significant is the court’s insistence on rigorous, record‑based agency decision‑making under 9 NYCRR 6056.7. Where the record shows a fully executed settlement, return to duty, and initial classification as a standard resignation, a contrary “for cause” determination will not stand without compelling evidence linking the resignation to the underlying allegations. Finally, Ferretti clarifies that DCJS is the proper party in Article 78 challenges to decertification determinations following the inaccuracy review process.

Going forward, Ferretti will shape how DCJS, municipalities, and officers navigate the delicate balance between accountability and the finality of bargained-for disciplinary resolutions, anchoring “for cause” decertification to a rational, evidence‑based causal connection rather than attenuated post‑settlement effects.