Monday, March 28, 2011

Certifying the preferred list to fill a vacancy

Certifying the preferred list to fill a vacancy
Castle v Putnam-Westchester BOCES, 269 AD2d 394

Section 3013 of the Education Law deals with layoff upon the abolishment of a position by a school district or a BOCES.

The statute provides, in pertinent part, for the reinstatement of a person who has been laid off “to an office or position similar to the one, which such person filled without reduction in salary or increment....”

The implication of the Castle decision by the Appellate Division is that an employer is not obligated to combine two part-time positions into a single full-time position in order to reinstate an educator whose name is on a preferred list. Lorraine Castle, then a full-time school psychologist, was excessed from her position.

When Castle learned that two part-time school psychologist positions were created she asked the court to direct that these two positions be combined into one full-time position and order her reinstatement with back salary.*

Castle’s basic argument: Putnam-Westchester BOCES should have combined the two part-time positions to create one full-time position and then reinstated her from the preferred list rather than employee two part-time per diem school psychologists. The Appellate Division disagreed and affirmed a lower court’s ruling dismissing her petition.

According to the ruling, there was no “vacancy” within the meaning of Section 3013(3) for the purposed of entitling Castle to have her name certified from the preferred list for appointment. The court cited Zurlo v Ambach, 75 AD2d 662, as authority for its ruling.

In Zurlo, the Appellate Division, Third Department, Judge Mikoll dissenting, approved a school board’s creating two three-quarter time positions rather than one full-time position and one half-time position notwithstanding the fact that Zurlo, who was appointed to one of the new three-quarter time positions, was on a preferred list after having been excessed from a full-time position. In contrast, the fact that an appropriate preferred list is available to fill a vacancy does not mandate that the appointing authority actually fill an existing vacant position.

If, however, an appointment is to be made to the vacancy, the preferred list must used.

* An individual whose name is on a preferred list may be appointed to a position for which he or she is otherwise qualified “part-time.” If the individual whose name is on a preferred list is appointed to a “part-time position” or in a different full-time position in the same jurisdiction, or is employed full-time by another jurisdiction, he or she would retain his or her preferred list status for appointment to a full-time position that is “the same or similar” to his or her former position should one become available while his or her name is on the preferred list.

=========================
The Layoff, Preferred List and Reinstatement Manual
- a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
=========================
.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

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. 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 the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.