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December 13, 2011

Abolishing positions in the public service

Abolishing positions in the public service
Matter of Matter of DiSanza v Town Bd. of Town of Cortlandt, 2011 NY Slip Op 08941, Appellate Division, Second Department

The Town Cortlandt abolished the position of Environmental Analyst, resulting in the layoff of Richard DiSanza. DiSanza sued, seeking a court order directing his reinstatement with back salary.

The Appellate Division affirmed a Supreme Court’s decision denying DiSanza’s petition.

The court explained that a public employer may, in good faith, abolish positions in the civil service for the purpose of economy or efficiency. In the event the decision is challenged, the challenger has the burden of proving that the employer did not act in good faith in abolishing the position.

As to the mechanics involved, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee otherwise entitled to the benefits set out in Sections 80 and 80-a of the Civil Service Law [Layoff], or any similar law, from his or her position (1976 Opinions of the Attorney General 7).

Further, in CSEA and Burnt Hills-Ballston Lake CSD, 25 PERB 3066, PERB, in response to CSEA's allegation that the school district had unilaterally abolished a position in violation of its duty to bargain, ruled that "notwithstanding the obvious impact a position abolition can have, and did have in this case, upon an employee's employment relationship, [it remains] convinced that a position abolition for economic reasons is primarily mission related and, therefore, a nonmandatory subject of negotiations."

The Cortland decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08941.htm

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com