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Thursday, July 21, 2011

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation
Fromer v Commissioner of Labor, 286 AD2d 816

The critical issue in this aspect of the litigation brought by Howard A. Fromer in his effort to obtain unemployment insurance benefits was his employment status with the now abolished State Energy Office: was he an independent officer of the agency?

The Appellate Division, Third Department, sustained a ruling by the Unemployment Insurance Appeals board holding that Fromer was not eligible for unemployment insurance benefits following his termination when his position was abolished. Fromer had served as general counsel to the State Energy Office from October 1988 until it was abolished on March 31, 1995.

The reason for Fromer's disqualification for benefits: The Board determined that Fromer served in a major nontenured policymaking or advisory position. Accordingly, he was “statutorily excluded” for such benefits by Labor Law Section 565(2)(e).

Earlier the Appellate Division had remanded the case to the Board for it to consider Fromer's argument that because he was a veteran within the meaning of Section 75 of the Civil Service Law, he was entitled to benefits [268 AD2d 707]. In considering this issue, the Board concluded that Fromer was an independent officer and, therefore, he was not entitled to limited tenure under Section 75. Fromer again appealed.

The Appellate Division again sustained the Board's determination, ruling that the protection afforded by Section 75 does not extend to those who hold “the position of private secretary, cashier or deputy of any official or department.” This listing, said the court, has been judicially interpreted to include independent officers, citing O'Day v Yeager, 308 NY 580.

Quoting from O'Day, the court commented that in determining whether a particular person is an independent officer, “[n]o automatic rule, no definitive signpost, is at hand, for it may fairly be said that each case must be decided upon its own facts.”

The court rejected Fromer's argument that because there was no statutory provision creating the position of general counsel for the Energy Office, there was no support for the Board's finding that he was an independent officer. It said that “[c]reation of the office by statute is a guide and not the sine qua non of whether a civil service position is independent.”

The Appellate Division said the record demonstrated that Fromer's position with the Energy Office was not that of a subordinate employee and that all of his duties and responsibilities required a high degree of initiative and independent thought and judgment.

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

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A Reasonable Penalty Under The Circumstances 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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