Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position

Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7

If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.

In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.

Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*

On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.

Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:

1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**

2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***

3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.

4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.

Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.

Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.

* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].

** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.

*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
NYPPL