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May 06, 2011

Veteran's rights upon the abolishment of positions for economy or other lawful purpose

Veteran's rights upon the abolishment of positions for economy or other lawful purpose
Fromer v Commissioner of Labor, 268 AD2d 707

An individual’s status as veteran within the meaning of Section 75 of the Civil Service Law may provide an individual with rights and benefits beyond the “disciplinary due process rights” usually claimed, as the Fromer case demonstrates.

Howard A. Fromer was serving as the general counsel to the State Energy Office when the agency was abolished on March 31, 1999. Fromer’s application for unemployment insurance was rejected by the Unemployment Insurance Appeal Board.

The Board ruled that Section 565 of the Labor Law barred Fromer from receiving benefits because he served in a major nontenured policymaking or advisory position that was statutorily excluded as employment for the purpose of qualifying for benefits.”

Fromer appealed, claiming that:

1. The exclusion in Labor Law Section 565 (2) (e) should be construed as containing an exception where the individual is terminated as the result of the abolition of his or her position;

2. Section 75(1)(b) of the Civil Service Law gave him “limited tenure” rights by reason of his status as a veteran.

The Appellate Division rejected Fromer’s first argument, commenting that “the statutory exclusion focuses “solely on the nature of claimant’s position in the governmental agency,” not on the reason for a claimant’s termination.

The court said that the Board decided that Labor Law Section 565(2)(e) does not include the abolishment-of-position exception Fromer claimed. As this conclusion is “neither irrational nor unreasonable in light of the absence of language in the statute to suggest that the Legislature intended any such exception,” the Appellate Division ruled that the Board’s statutory interpretation must be upheld since it was “rational and reasonable.”

The alternative argument presented by Fromer did better as it raised an issue not previously considered by the Board -- Section 75(b)(1) of the Civil Service Law provided him with a “a limited grant of tenure” sufficient to qualify him for benefits.

The Appellate Division said that the Board’s determination had to be reversed and remitted reconsideration, rejecting the Attorney General’s argument that the record provided a rational basis for the Board’s determination.

Why? Because, said the court, the Board had not based its determination, much less considered his claim of “limited tenure status,” in deciding Fromer’s eligibility for unemployment insurance benefits.

Commenting that it is well settled that “judicial review of an administrative determination is limited to the grounds invoked by the agency,” the court said that this issue had to be addressed by the Board as to “its determination of [Fromer’s] entitlement to the limited tenure afforded by Section 75(b)(1).”


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