Wednesday, April 27, 2011

Creating and abolishing a temporary position

Creating and abolishing a temporary position
Wilson v Madison-Oneida BOCES, 268 AD2d 625

Frequently a public employer will establish a temporary position to handle a particular need that is expected to be resolved in a relatively short period. The Wilson case addresses the creation and abolishment of temporary positions and the rights of individuals appointed to such temporary positions.

 The Madison-Oneida BOCES appointed Dana Wilson as “temporary clerk of the works” to perform construction oversight services for the Cazenovia Central School District and the Stockbridge Valley Central School District. The item was established as a temporary position in the civil service.*

BOCES initially wrote to Wilson telling him that his appointment was effective February 9, 1996 and would run through June 30, 1996. He was to be compensated at an annual salary rate of $40,000. BOCES later wrote Wilson advising him that he was appointed “temporary clerk of the works” for the period July 1, 1996 through June 30, 1997 at the same rate of compensation.

When the work at Cazenovia was nearing completion, Wilson commenced working at Stockbridge. When Stockbridge’s project was shut down due to poor weather conditions, Stockbridge asked BOCES to “adjust its contract” for clerk of the works services. As a result, BOCES abolished Wilson’s position effective January 17, 1997 and discontinued his employment.

Wilson sued, contending that BOCES violated its “employment agreement” to employ him through June 30, 1997 and, in addition, urged that it had terminated him without just cause.
The Supreme Court, treating this as an “Article 78” proceeding rather than as an action for “breach of contract,” dismissed his petition, finding that it was untimely. Wilson appealed.

First, the Appellate Division pointed out that the four-month Statute of Limitations contained in Section 217 of the Civil Practice Law and Rules is applicable to proceedings contesting the abolishment of positions in the public service. It then said that the time period to challenge the decision runs from the date abolition. Agreeing with the lower court, the Appellate Division said that Wilson’s Article 78 petition was untimely.

In an effort to avoid this result, Wilson tried to convince the court that this was a “breach of contract” case and thus his petition was timely as it was subject to a longer Statute of Limitations provision.

The Appellate Division rejected Wilson argument, holding that there was insufficient evidence to demonstrate a formal employment contract between Wilson and BOCES or the school districts. It said that the “employment notices” he relied do not establish the existence of such an agreement.

Thus, said the court, Wilson’s claims involve the abolition of the position of temporary clerk of the works, a matter that may be properly challenged only via an Article 78 proceeding.

According to the ruling, Wilson’s position was officially abolished effective January 17, 1997 at a meeting of BOCES held on February 13, 1997. The Appellate Division concluded that regardless of whether the four-month Statute of Limitations is measured from the date of the BOCES meeting or the effective date of abolition of the position, Wilson’s commencement of the action in January 1998 was untimely.

* The decision refers to Wilson’s temporary position as being in the “civil service” when it would be more accurate to describe it as being in the “classified service.” In New York, the civil service consists of the classified service and the unclassified service. Educators, typically serving in positions in the unclassified service, are also in the civil service. 

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/

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