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Friday, October 24, 2014

An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute


An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute
Thornton v Saugerties Cent. Sch. Dist., 2014 NY Slip Op 07046, Appellate Division, Third Department

The School District’s [District] data administrator’s [Thornton] position was abolished for budgetary reasons upon the School District’s purchase of data management services from a Board of Cooperative Educational Services (BOCES). The duties of the former District data administrator were assumed by existing staff members of BOCES. When the District denied Thornton’s request to by transferred to BOCES pursuant to Civil Service Law §70(2), she be transferred to BOCES to perform her former duties.

Thornton then commenced an Article 78 proceeding seeking reinstatement to her former position and transfer to BOCES, and reinstatement of her employee benefits.

When Supreme Court dismissed the petition on the merits, finding that Thornton had no clear right to the relief requested because she was not a necessary employee within the meaning of Civil Service Law §70(2), she appealed.

The Appellate Division held that Supreme Court should have addressed the District's motion seeking dismissal of the petition as untimely and, if it was denied, permitted the District to answer before ruling on the merits. The court, accordingly, said that it would statute of limitations defense advanced by the District. 

The CPLR required Thornton to commence her Article 78 action within four months after the District's determination became final and binding upon her. However, to determine when the statute of limitations began to run, the Appellate Division said it must first address whether Civil Service Law §70(2) applies in this instance, explaining that:

1. If it does not apply, this is a common termination of public employment case and, because no administrative hearing is required and the statutory "period runs from the notice of discharge, or the effective DAte of discharge, if later." If §70(2) did not apply in this instance, Thornton’s petition was untimely.

2. If Civil Service Law §70(2) did apply in Thornton's situation, the court characterized the situation, as “more complicated” and the statute of limitations would normally run from the performance of certain obligations by the District.* The District, however, did not believe that §70(2) applied in this situation and did not perform those statutory obligations.

In this instance Civil Service Law §70(2) was triggered "[u]pon the transfer of a function" from the District to BOCES and the District’s decision to move its own data management services to BOCES constituted the "transfer of a function" within the meaning of the statute.

Accordingly, §70(2) required the District and BOCES to comply with a number of procedural steps. including the District's providing BOCES with a list of the names and titles of all District employees who were "substantially engaged in the performance of the function to be transferred” not less than 20 days before any such transfer and, in addition, to publicly post that list along with a copy of the statute. This, explained the court, would provide all District employees time to give written notice of protest to BOCES and the District of their "inclusion in or exclusion from such list" prior to the effective date of the change.

If BOCES received any such protests, it had 10 days within which to review the protest, consult with the District and notify the employee of the determination regarding such protests. That determination would be “a final administrative determination,” whereupon the District would then be required to determine which employees on the list were necessary to be transferred by considering the relevant statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services. Employees not so transferred would have their names placed on a preferred list for the same or similar positions at both the District and BOCES in accordance with §§80 and 80-A of the Civil Service Law.

Noting that when analyzing the statute of limitations question the court must consider the purpose of the statute, in this instance to protect the employment rights of public employees, and the mandatory nature of the statute's procedural requirements. “Ignoring the statutory procedure” said the court, “would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.”

Considering the series of events in Thornton’s situation, the Appellate Division concluded that her Article 78 petition was timely and the District's statute of limitations defense must be rejected. In a footnote to its decision the court indicated that “Although the statute of limitations determination is intertwined with the merits of the petition, under the procedural posture of this case, we may consider factual affidavits when addressing the statute of limitations defense even though it might not be proper to consider those affidavits to decide the merits at this time.”

* In addition, the provisions of §§80 and 80-a of the Civil Service Law would be triggered if any employee would be laid off as the result of the abolisement of a position.

The decision is posted on the Internet at:

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