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N.B. §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
NYPPL's most recent posting is set out below.
April 9, 2010
Public employers may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith
Appeal of Sherman Roberts, Audrey Lewis, Calvin Wilson, Sally Neumann, Yolanda Howard, Thomas Wright and Gina Talbert from actions of the Board of Education of the Wyandanch Union Free School District regarding the abolition of positions, Decisions of the Commissioner of Education, Decision No. 16,049
Informed at its July 2, 2008 meeting that the school district was operating at a $2.5 million deficit, the Board of Education of the Wyandanch Union Free School District proposed a reorganization plan to the School Superintendent that would abolish the six positions then held by Lewis, Wilson, Neumann, Howard, Wright and Talbert and create four new positions: (1) Director of Elementary Education; (2) Director of Secondary Education; (3) Assistant Superintendent for Personnel, Curriculum and Staff Development; and (4) Assistant Superintendent for Business, Finance and Grant Funding; in lieu thereof.
Under the board’s plan, the duties of the positions then held by Howard and Wright would be redistributed among existing staff. Although Superintendent Sherman Roberts told the board that he could not support the proposal, the board nevertheless adopted resolutions abolishing the six positions for “budgetary-economic-fiscal considerations and for reasons of efficiency.”
Roberts and his co-appellants then challenged the board's decision to abolish the six positions* and petitioned the Commissioner of Education to overturn the board's action.
The petition alleged that the board’s action abolishing the six positions was in violation of Education Law §§1711 and 3013 and board policies 4220 and 6210.
The Commissioner sustained the board's actions but remanded one issue to the board for its further review.
As to the merits of the representations that the board violated the provisions of the Education Law cited by the appellants, the Commissioner said that “a board of education may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith.” In the words of the Commissioner, the appellants “have not met their burden of proof on their claim of improper motivation.”
Turning to the allegations in the petition claiming that the board had violated its own policies, i.e., policy 4220 and policy 6210, the Commissioner ruled, based on the record before him, he could not conclude that board clearly violated the board policies enumerated by the petitioners.
Indeed, to the extent that the board's "policy 6210" could be interpreted to preclude the board from exercising its responsibility to abolish a position without the agreement of the superintendent, the Commissioner said that “such policy would constitute an unlawful delegation of the board’s powers and be void as against public policy.” The reason for this is that the decision to abolish positions for economic reasons “is inextricably intertwined with the board’s non-delegable duty to formulate the district’s budget, a policy that delegates the ultimate decision to abolish positions to the superintendent would be unenforceable.”
However, noted the Commissioner, “As to those Petitioners assuming positions which have been recreated in merged positions ... the alleged terminated incumbents would be entitled to assume the ‘similar’ positions established.”
Education Law §3013(1), explained the Commissioner, provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position. However, the individual who was laid off when his or her position was abolished must first establish that the abolished position and the new position are in the same tenure area.
Clearly Neumann and Talbert would be entitled to appointment to newly created positions only if the new positions are similar to their former (abolished) positions but they have the burden of proving that a majority of the duties of the new positions are similar to those of their respective former positions.
Here, said the Commissioner, the board’s answer “contains seemingly contradictory statements with respect to Neumann and Talbert’s tenure rights and there is no evidence in the present record that the board ever conducted an appropriate analysis of the similarity of the abolished positions held by Neumann and Talbert to the newly created positions or determined what tenure area they are in, as required by §3013(1)." **
Accordingly, the Commissioner directed the board “to determine, retroactively to the effective date of the abolition of their positions, the employment rights of … Neumann and Talbert in light of such abolition, including their rights, if any, to appointment to any similar newly created position within their tenure areas.”
If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
* At the time this appeal was commenced, Roberts was the district’s superintendent. The other six petitioners were employed by the district in the following positions: School Personnel Officer (Lewis), Business Manager/Director of Finance (Wilson), Assistant Superintendent for Curriculum and Technology (Neumann), School Cook Manager/Supervisor of Food Services (Howard), School Transportation Supervisor (Wright), and Director of Grant Funding (Talbert).
** This suggests that the appointing authority has an obligation to consider whether excessed employees are eligible for appointment to new or reconstituted positions from the preferred list resulting from the layoff.
N.B. The positions held by petitioners Lewis, Wilson, Howard and Wright were positions in the classified service whereby layoff and reinstatement are subject to the relevant provisions of the Civil Service Law. In contrast, Neumann and Talbert served in positions in the unclassified service whereby layoff and reinstatement are subject to the relevant provisions of the Education Law and “are currently tenured” as Director of Technology and Middle School Principal, respectively.
The Commissioner’s decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16049.htm
The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in
A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html
The Layoff, Preferred List and Reinstatement Manual -Focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Administrative Law
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Employment Law
- Blogging Government Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Catalog of Law Blogs
- Challenging Adverse Personnel Decisions
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- ReformNY - by NYU's Brennan Center for Justice
- St. Lawrence County Civil Service Web Site
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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.