Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES

Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES
Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 2010 NY Slip Op 08472, Decided on November 19, 2010, Appellate Division, Fourth Department

Janet Hellner was employed by the Wilson Central District as an occupational therapist when, as a result of budget considerations, the District abolished her position* and entered into an agreement with BOCES to provide occupational therapy services.

Contending that this action constituted a "transfer of a function," the union said that Civil Service Law §70(2) required that the District certify Hellner’s name to BOCES as the employee to be transferred and that BOCES offer her the position of occupational therapist.

The District and BOCES, on the other hand, contend that Education Law §3014-a and 1950 controlled with respect to Hellner's transfer rights inasmuch as BOCES was to take over the occupational therapy program from the District.

Ultimately the Appellate Division ruled that:

1. The Agreement between the District and BOCES providing for occupational therapy services constituted the "transfer of a function" within the meaning of Civil Service Law §70(2).

2. The theory advanced by both the District and BOCES that Education Law §§3014-a and 1950 “exclusively govern the issue of employee transfer rights” was incorrect in this instance as neither §3014-a nor §1950 provided any transfer rights with respect incumbents of non-teaching positions in the classified service, citing Matter of Vestal Employees Association v Public Employment Relations Board, 94 NY2d 409.

In Vestal the Court of Appeals ruled that a school district employee providing printing services and thus had a non-educational position [in the classified service] was "afforded certain protections upon the transfer of his functions pursuant to Civil Service Law §70(2)."

The Appellate Division ruled that the transfer of occupational therapy services from the District to BOCES “constitutes the transfer of a function within the meaning of Civil Service Law §70(2) and thus Hellner, as the employee whose function was transferred, is afforded certain affirmative rights upon the transfer” of the position.

As to the District’s argument that this action “would violate various administrative provisions applicable to BOCES and the District,” the Appellate Division said that to the extent that such administrative provisions are inconsistent with §70(2), the statute control.

The Appellate Division said that "[A]dministrative regulations are invalid if they conflict with a statute's provisions or are inconsistent with its design and purpose," citing Matter of City of New York v Stone, 11 AD3d 236.

However, court said that the record was insufficient to enable it to determine whether BOCES had sufficient occupational therapy staff at the time of the Agreement and remitted the matter to Supreme Court for further proceedings on the union's petition to determine that issue.

* In the event an appropriate preferred list is certified to an appointing authority to fill a vacancy, the appointing authority must either [1] use the preferred list to fill the vacancy or [2] may elect to keep the position vacant.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08472.htm

For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/

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