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March 11, 2011

While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant’s statutory rights

While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant’s statutory rights
Matter of Gallagher v Board of Educ. for Buffalo City School Dist., 2011 NY Slip Op 01163, Appellate Division, Fourth Department

James F. Gallagher, in his capacity as president of the responsible employee organization, challenged the Buffalo City School District’s abolishing the positions of Director of Emergency Planning for the Buffalo City School District and Stenographic Secretary to the Superintendent and in replacing them with nearly identical civil-service exempt confidential positions.

Contending that the School District had acted in bad faith in abolishing these positions, Gallagher asked Supreme Court to annul the District’s decision abolishing the items.

Supreme Court granted the petition Gallagher’s petition and the Appellate Division sustained the lower court’s ruling.

The Appellate Division rejected the School District’s contention that they were entitled to abolish the position of Director of Emergency Planning because “they are entitled to abolish a position at any time” as being without merit.

While, the court explained, "A public employer may in good faith abolish a civil service position for reasons of economy or efficiency, but a position may not be abolished as a subterfuge to avoid the statutory protection afforded to civil servants," citing Hartman v Erie 1 BOCES Bd. of Educ., 204 AD2d 1037.

The Appellate Division said that in this instance the record showed that the position of Director of Emergency Planning was abolished in favor of a re-created civil-service exempt position entitled Homeland Security Coordinator. Yet, said the court, the School District “presented no evidence justifying the need for that position to be re-created for reasons of economy or efficiency, nor did they justify the need for that position to be classified as civil-service exempt.”

The court said that the primary duty of both the abolished Director position and the "re-created" Director position was the responsibility for emergency preparedness, including the implementation of safety plans and the organization of training programs and the knowledge, skill and ability for both positions appeared identical.

The Appellate Division said that with respect to the Stenographic Secretary position, the record supports a finding that it was abolished in bad faith.

Again, said the court, the School District did not present any evidence justifying the need to replace the Stenographic Secretary position with the newly created Confidential Secretary position for reasons of economy or efficiency, nor did they justify the need for that position to be classified as civil-service exempt.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01163.htm

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