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July 17, 2013

Positions in the public service may not be abolished in bad faith
Matter of Weimer, 74 AD2d 574

Although the consultant recommended the creation of a new position of “business manager.” to report to the Assistant Superintendent for Business Affairs, the School Board abolished the Assistant Superintendent position in favor of the creation of two new positions: an “Administrator of Operations” and a “Business Manager”. The incumbent of the Assistant Superintendent position, George C. Weimer, Jr., was terminated from his position and two other individuals were appointed to the newly created positions.

The Court held that the duties of the Assistant Superintendent position were merely transferred to two new positions and therefore the abolishment of the Assistant Superintendent position was not made in good faith as the grounds. The decision indicates that Weimer’s tenure rights could not be summarily. The Court also noted that the School Superintendent had earlier suggested to the School Board that “the duties of the (Assistant) position be gradually reduced until the (Assistant) would leave of his own accord.”

The Appellate Division ruled that Weimer had discharged duties substantially similar in nature to the duties assigned to the new positions. He was thus entitled to be granted relief under the provisions of §2510 of the Education Law.*

Weimer, however, indicated in his brief that he has obtained other employment in another school district. Accordingly, the Appellate Division remitted the matter to Supreme Court “for the sole purpose of determining the amount of salary due [Weimer], less the amount of the earnings from other employment and any unemployment [Weimer] may have received.”

* In the words of the court: ”Just as under the provisions of the Civil Service Law, a municipality may not abolish a position by subterfuge (Switzer v Sanitary Dist. No. 7, Town of Hempstead, 59 A.D.2d 889, app dsmd 43 N.Y.2d 845; Matter of Wipfler v Klebes, 284 NY 248; Wood v City of New York, 274 NY 155; Ann., 87 ALR3d 1165, 1184), a school board under the provisions of the Education Law may not abolish a position by subterfuge (Matter of Amos v Board of Educ., 54 A.D.2d 297, 301, affd 43 N.Y.2d 706; cf. Matter of Abramovich v Board of Educ., 46 N.Y.2d 450, 454; Education Law, §2510.“

The decision is posted on the Internet at:
http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19800204_0040515.NY.htm/qx

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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.
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