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October 22, 2015

Abolishing a position in the public service and the Doctrine of Legislative Equivalency


Abolishing a position in the public service and the Doctrine of Legislative Equivalency
Colabella v Town of Eastchester, 2015 NY Slip Op 07656, Appellate Division, Second Department

Citing Wipfler v Klebes, 284 NY 248, the Appellate Division said that “a public employer may abolish a civil service position when the ‘discontinuance of the position would promote efficiency and economy,’ provided that the employer acts in good faith.”*

In contrast, a public employer may not abolish a position as a subterfuge to avoid statutory or contractual protection afforded civil servants before they are discharged. However, in the event a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law.

In this action the petitioner, Antonietta Colabellachallenged a determination of the Town Board of the Town of Eastchester [Town] abolishing her full-time civil service position as a parking enforcement officer. It was undisputed that in 2011 the Town appointed four new part-time parking enforcement officers. The decisions states that these part-time employees, presumably appointed to positions jurisdictionally classified as positions in the noncompetitive class, were not represented by an employee organization. Colabella’sposition was abolished on January 1, 2012.

The Appellate Division said that “it is undisputed that four new part-time parking enforcement officers were hired in 2011; one of those employees was hired in October 2011” only a month before Colabellawas informed that her position would likely be abolished. 

The decision indicates that the Town failed to submit any evidence as to whether the decision to abolish Colabella’s position was made by Town Board resolution, or by some other means.

Applying the Doctrine of Legislative Equivalency, the Appellate Division said that a  position "created by a legislative act can only be abolished by a correlative legislative act," citing Torre v County of Nassau, 86 NY2d 421. In this instance the court found that the record did not indicate the specific mechanism by which Colabella’s position was abolished and while the Town submitted some evidence showing that it undertook various cost-cutting measures in connection with its 2012 budget, “the record contains no evidence as to any legislative or other deliberations underlying the determination at issue here” -- the abolishment of the position encumbered by Colabells.

Under these circumstances, the Appellate Division held that [1] the evidence raised issues of fact warranting a hearing as to whether Colabella’s position was abolished in a bad faith effort to circumvent the Civil Service Law, and [2] whether her position was abolished in conformity with the Doctrine of Legislative Equivalency."

On another point, the Town contended that Colabella could not “properly raise claims regarding alleged violations of the Taylor Law or as to certain job classification determinations made by the Westchester County Department of Human Resources.” However, said the court, Colabella did not make any such claims in her petition and thus "was not required to exhaust administrative remedies prior to bringing this proceeding, as this case does not involve a matter within the scope of the grievance provisions of the applicable collective bargaining agreement.”

* The Attorney General has opined that there must be an actual abolishment of the position in question in contrast to merely “creating a vacancy as the result of a layoff” in order to trigger the relevant statutory layoff procedures [1976 Opinions of the Attorney General 7].

The decision is posted on the Internet at:
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