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November 14, 2011

Creating new positions


Creating new positions
Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

There is only one way to create a new position, the way the controlling law requires.

The statutory imperatives of Section 22 of the Civil Service Law reflects such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of Section 22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (Section 200 et seq, Civil Service Law).

Failing to comply with the mandates of Civil Service Law §22 is fatal and no new position can come into being unless it is created as prescribed by the section.

While the Court in its decision did not address the “status” of the incumbent of the “new position”, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., Section 80, Layoff) would control if the incumbent of the “nonexistent new position” could no longer serve as a “position” for payroll purposes.

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