Termination of a probationer

Termination of a probationer
Miller v Village of Wappingers Falls, App. Div., 289 A.D.2d 209

In July 1998, Louis Miller, a registered Republican active in local party matters, was appointed as the zoning administrator of the Village of Wappingers Falls by the then Republican-controlled Village Board. Miller's appointment was apparently subject to his satisfactorily completing a probationary period. In April 1999, presumably while still serving as a probationer, Miller was terminated from his position by the newly elected Democratic administration. Miller sued, contending that he was improperly terminated from his employment because of his membership in the Republican Party.

The Village's motion for summary judgment was rejected by a State Supreme Court justice. In response to the Village's appeal challenging the lower court's denial of its motion, the Appellate Division, citing Negron v Jackson, 273 AD2d 241, said that proba­tionary employee may not be fired for constitutionally impermissible reasons. Here, said the Appellate Division, Miller alleged a "constitutionally impermissible reason" for his termination -- his political affiliation.

The court rejected the Village's argument that because Miller was a probationary em­ployee it had the right to terminate his employment for any reason or for no reason.*

The Appellate Division said that "given the nature of [Miller's] allegations, it was incumbent upon the [Village] to present admissible evidence in Supreme Court showing that [Mil­ler's] political affiliations did not play a substantial part in the decision to terminate him."

In sustaining the lower court's dismissal of the Village's motion, the Appellate Division also noted that the Village "failed to even address these claims before the Supreme Court." This, said the court, meant that it did not carry its burden of proof and its motion was properly denied.

In its appeal the Village apparently also argued that Miller was "a policy-making em­ployee cloaked with considerable discretion, and thus his political affiliation was a relev­ant consideration" insofar as his dismissal was concerned. The Appellate Division said it could not consider this argument "as [the Village] improperly seeks to interject new facts and theories for the first time on appeal."

Terminations alleged to be based on political affiliation frequently are stated in terms of a violation of the individual's rights under the federal Constitution. The general rule in such cases is that a public employee may not be removed from his or her public employ­ment solely on the basis of his or her political affiliation unless there is proof that the individual's political affiliation was a critical element to his or her performance of the duties of the position.

Among the significant cases addressing this issue are Elrod v Burns, 427 US 347; Branti v Finkel, 445 US 507 and Rutan v Republican Party of Illi­nois, 497 US 62.

* Although the decision does not address Miller’s probationary obligation, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.