December 28, 2010

Determining the minimum period of probation

Determining the minimum period of probation
Challandes v Shew, 275 A.D.2d 369


In most cases a permanent appointment to a position in the classified service is subject to a probationary period. Typically the probationary period is set in terms of a minimum period and a maximum period.*

Also, if a probationer enters military duty within the meaning of Section 243 of the Military Law, the time of his or her absence shall be credited as satisfactory service during such probationary term.

The basic rule: unless otherwise provided by a collective bargaining agreement, a probationer may be dismissed at any time, for any reason [other than for an unlawful or discriminatory purpose], or for no reason, after completing his or her minimum probationary period and prior to the end of his or her maximum period of probation.

In other words, a probationary employee may be terminated without a statement of any reason for the termination and without a per-termination hearing, provided the dismissal (1) was not made in bad faith; (2) did not constitute a violation of statutory or decisional law; and (3) was not based on any unconstitutional or illegal reasons.

If the appointing authority wishes to dismiss a probationer before he or she completes his or her minimum probationary period** formal disciplinary action must be initiated. The decision by the Appellate Division in the Challandes case demonstrates this.

The Village of Ossining appointed Joyce Challandes as a permanent Data Entry Operator, subject to her satisfactorily completing her probationary period. A few days later the Village Manager revoked the appointment.

Challandes sued, claiming that her termination was unlawful. A State Supreme Court justice agreed and directed Ossining to reinstate her to the position with all back salary and the other benefits that she would have received had her appointment not been revoked.

The Village appealed, only to have the lower court’s determination affirmed by the Appellate Division.

Under Westchester County’s Civil Service Rule 11.1(a)(1), said the court, Challandes had to serve a minimum of 12 weeks before she could be removed at the discretion of the appointing authority. Any earlier termination would have to be based on her having to be found guilty of charges of incompetence or misconduct pursuant to Civil Service Law Section 75. As Challandes was not served with disciplinary charges and no Section 75 hearing was conducted, the court ruled that Challandes’ removal was unlawful.

It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes tenured in the position and thereafter may only be removed for cause after notice and hearing. This is usually referred to as attaining “tenure by estoppel.”

Although tenure by estoppel is most frequently encounter in connection with claims of tenure advanced by probationary teachers who have been terminated, it is possible for employees holding positions in the competitive class to attain tenure by estoppel.

For example, if a provisional employee in a competitive class position becomes eligible for permanent appointment to the position and he or she is continued in the position as a provisional employee, he or she is afforded permanent appointment to the position. The leading case on this point: Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611.

Suppose, however, a provision employee is given his or her notice of termination on the last day of the employee’s probationary period and the employee is continued on the payroll beyond the last day his or her probationary period. This, courts have ruled, constitutes a timely notice of termination as the last day of service need not coincide with the last day of the probationary period.

As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, so long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual’s probationary period to decide whether to retain the employee, extend the employee’s probationary period, or to terminate the employee from his or her position. Although the effective of the employee’s removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.

* An example of a permanent appointment in the classified service that is not subject to a probationary period: reinstatement from a preferred list. However, an individual who was laid off before completing his or her probationary period is required to complete his or her term of probation upon reinstatement from the preferred list.

** If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period.

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