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July 20, 2011

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency
Matter of Lamb v Town of Esopus, 35 AD3d 1004, 827 N.Y.S.2d 307

The Lamb case raised two issues addressed by the Appellate Division. The first is relatively common, dealing with the abolishment of a position. The second is relatively rare: a claim that the doctrine of legislative equivalency was not applied in this case.

The Town of Esopus abolished the full-time building department aide position held by Debra L. Lamb and established two part-time positions instead. Lamb sued, seeking a court order directing Esopus to reinstate her to her former position with back pay and benefits. Supreme Court dismissed Lamb’s petition and the Appellate Division affirmed the lower court’s action.

Esopus claimed that it restructured its building department to keep down costs and increase efficiency. This, it contended, required elimination of Lamb’s full-time position. The Town also argued that Lamb did not have any tenure status in her position, which was a position in the non-competitive class.

The Appellate Division said that once the Town came forward with prima facie evidence that Lamb was not entitled to Civil Service Law protection, the burden shifted to her to raise a triable issue of fact regarding her entitlement to such protection. This, said the court, she failed to do.

While Lamb had been employed the Town for a number of years and passed a civil service examination qualifying her for numerous clerical positions, she failed to present proof that she was employed in a noncompetitive class position for five continuous years, a threshold requirement for tenure in the position (see Civil Service Law §75 [c]).*

Further, said the court, even had Lamb enjoyed the benefits accorded non-competitive class employees by §75.1(c) the Town could eliminate her position for purposes of economy or efficiency. It was Lamb’s burden to demonstrate that the elimination of her position was motivated by bad faith or was a subterfuge. Her efforts to meet this burden by contending that the Town failed to prove any cost savings resulted from its reorganization of the building department and elimination of her full-time position was rejected by the court.

The Town, said the court, showed that the reorganization increased efficiency by permitting it to hire a full-time building inspector by “transferring the benefits previously provided to [Lamb's] position.” The Town also said that the hiring several part-time workers also allowed the department to be open an additional 16 hours per week and not close during the lunch hour, thus increasing public access to the office.

The Appellate Division said that Lamb failed to meet her burden of overcoming the Town’s bona fide reasons for eliminating her position.

Lamb also argued that the elimination of her position violated the doctrine of legislative equivalency. Under that doctrine, said the court, "a position created by a legislative act can only be abolished by a correlative legislative act,” citing Matter of Torre v County of Nassau, 86 NY2d 421 and other cases.

According to the decision, it appears that Lamb’s position was created in January 2001 by a resolution providing for the “appointment of officers and employees,” and the same full-time position was eliminated when the Town enacted a resolution providing for the “appointment of officers and employees” in January 2005. As the position was created and abolished by the same means, the court said that the Town had acted in accord with the principle of legislative equivalency.

* Civil Service Law Section 75.1(c) provides that “an employee holding a position in the non-competitive class other than a position designated in the rules of the state or municipal civil service commission as confidential** or requiring the performance of functions influencing policy, who since his last entry into service has completed at least five years of continuous service in the non-competitive class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy….”

** N.B. “confidential” within the meaning of Section 75.1(c) is not the equivalent of  “confidential” as that term is used in Article 14 of the Civil Service Law; the Taylor Law.

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