Provisional appointee covered by the State’s “Whistle Blower Law”
Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858
The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.
Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.
Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”
It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”
Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”
According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.