Determining seniority of probationary employees in the event of a layoff
Kenny v Rockland County Supt. of Highways, 2015 NY Slip Op 01453, Appellate Division, Second Department
Kevin J. Kenny was appointed to the position of Engineer II [Field] by the Rockland County Highway Department in April 2001. In August 2005, after serving a 26-week probationary period, he obtained tenure in that title as Engineer II [Field].
In December 2011 Kenny’s position was reclassified to an Engineer III position and in January 2012, Kenny filed an application for the Engineer III position and was nominated for a noncompetitive promotion* to the title of Engineer III. Kenny received a salary increase commensurate with his promotion to Engineer III and his appointment was described as "permanent, but serving probationary period."
In late June 2012, Kenny was told that a number of positions had been abolished by the County Legislature and that, although his position was not among those abolished, another employee with permanent status had greater rights to the Engineer III position than he had. On July 27, 2012, Kenny was terminated from his employment.
Contending that his appointment to the Engineer III position was a reclassification of his job title, not a promotion, thereby not requiring any new probationary period, Kenny challenged the Department’s determination. The Department, on the other hand, argued that Kenny’s appointment to the Engineer III position “constituted both a reclassification and a promotion” and that Kenny’s termination complied with applicable law.** After conducting a hearing, the Supreme Court granted Kenny’s petition, annulled the Department's determination, and reinstated the him to the position of Engineer II (Field) with back pay and benefits.
On appeal the Appellate Division reversed the Supreme Court’s ruling, on the law, and dismissed Kenny’s petition on the merits.
The Appellate Division explained that “Where, as here, an existing civil service position is reclassified, such reclassification is governed by Civil Service Law §22”***and, contrary to the Supreme Court's determination, the evidence at the hearing established that the procedural requirements for reclassifying the [Kenny’s] position from Engineer II (Field) to Engineer III were properly met.
Further, said the court, “contrary to [Kenny’s] contention, the reclassification also constituted a promotion, as it encompassed certain out-of-title duties which he had begun to perform after having received his engineering license in 2009 ... and resulted in a salary increase from a field position (Engineer II) to a management position (Engineer III), and a change in union representation to the Rockland Association of Management.”
The Appellate Division’s conclusion: the determination terminating Kenny’s employment had a rational basis, complied with due process requirements, and was not arbitrary and capricious or an abuse of discretion.
* See Civil Service Law §52.7.
** N.B. §80.1 of the Civil Service Law that provides “Notwithstanding the provisions of this subdivision, however, upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary service shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents [emphasis supplied]..
*** §22 of the Civil Service Law, in pertinent part, provides: “Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission.
The decision is posted on the Internet at:
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