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Sunday, August 07, 2011

Temporary assignment not the same as appointment to a “position”


Temporary assignment not the same as appointment to a “position”
Miller, et al, v. Braun, Sheriff of Erie County, 89 A.D.2d 787

A number of Criminal Deputy Sheriffs with the Erie County Sheriff’s Department, a position in the competitive class, were “appointed” to the “position” of Special Deputy.

The Erie County Charter permitted the Sheriff to make “temporary assignments” as “Detective Deputy and Special Deputy.” The County eliminated the “Special Deputy” and established a competitive class position of Sergeant.

When former “Special Deputies” failed the test for Sergeant, they were returned to their regular Criminal Deputy positions. They then sued.

With respect to Miller’s claim that a “local law” was required to “reclassify” the position of “Special Deputy” to Sergeant, the Appellate Division ruled that the County had not created the position of “Special Deputy” but merely authorized the Sheriff to make a “temporary assignment” to that status.

The court then concluded “reclassification of the position of Special Deputy to make it competitive...does not effect an abolishment of or change in a position created by the Charter.”

It seems that there was some confusion between the creation of a “position” and the status of a person given a special title while in a position. Under traditional Civil Service classification concepts, the “position” of “Special Deputy”, if properly established, could have been “reclassified” to Sergeant.

In any event, the former “Special Deputies” would not appear to have a claim to permanent status in the Sergeant positions unless they were “permanently appointed” in accordance with law. (See CSEA v. Harrison, 48 NY2 66.)

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