Wednesday, July 03, 2013

The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation

The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation
Civil Serv. Empls. Assn., Inc. v County of Orange, 2013 NY Slip Op 04798, Appellate Division, Second Department

In this action a number of employees challenged their termination from their respective positions with the County of Orange.

The Appellate Division, reversed a Supreme Court ruling dismissing the Article 78 petition filed by these individuals “on the law” and the County’s decision to terminate the employees was remitted to the Supreme Court, Orange County, for a determination of all the benefits those individuals “would have been entitled to had they remained employed for the period from October 29, 2010, to December 31, 2010, and for a calculation of the principal sum of back pay to be awarded to those [these individuals] in accordance herewith and thereafter for the entry of an appropriate amended judgment.”

The genesis of this case was a direction of the County Executive of Orange County to send letters “to 39 civil service employees notifying them that they were being laid off effective October 29, 2010, for economic reasons” and, indeed, on December 2, 2010, the Orange County Legislature passed a budget for the 2011 fiscal year*that did not provide funding for the positions held by these 39 “laid off” employees.

The employees were advised that their names would be placed on a preferred eligible list pursuant to a provision in their collective bargaining agreement, which pertained to "abolished" positions. Subsequently the employees were advised that their names had been placed on the preferred eligible list "[i]n accordance with §81 of Civil Service Law."
Citing Torre v County of Nassau, 86 NY2d 421, the Appellate Division explained that the doctrine of "[l]egislative equivalency requires that a position created by a legislative act can only be abolished by correlative legislative act."**

The court explained, the Orange County Charter and Orange County Administrative Code vests in the Orange County Legislature sole authority to "establish or abolish positions of employment and titles thereof." However, the County Legislature had not taken any action to abolish the relevant positions at the time the County Executive terminated the subject employees' employment.

Although the Orange County Charter and Orange County Administrative Code give the County Executive the authority to "supervise, direct and control and administer all departments," they do not give the County Executive the authority to terminate the employment of civil service employees without a proper abolition of the positions by the County Legislature in accordance with the doctrine of legislative equivalency.
Further, said the court, the County Charter does not authorize the County Executive to undertake any "remedial action" constituting unilateral modification to the budget and, or, abolition of legislatively created positions.

The bottom line: The County Executive did not have the authority to terminate the subject employees' employment for economic reasons, effective October 29, 2010. Thus, the court concluded, those individuals that were “laid off” effective October 29, 2010, are entitled to back pay, and presumably benefits, to which they would have been entitled had they remained County employees for the period from October 29, 2010, to December 31, 2010.

* Presumably the budget was to take effect January 1, 2011 and by not providing for the funding of the relevant positions, the Legislature was deemed to have “abolished them.”

** The Attorney General has opined that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 and 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

The decision is posted on the Internet at:

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The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on  http://nylayoff.blogspot.com/

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

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions 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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