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Thursday, December 15, 2016

A school district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).


A school district’s decision to abolish a position in the classified service and have a BOCES assume performing  the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

However, said the Appellate Division, petitioner’s “data management services” job duties in the position abolished by the school district were assumed by existing staff members of BOCES. Thus, said the court, petitioner failed to establish a clear right to the relief sought because she was not a "necessary employee" within the meaning of §70.2.

The court noted §70(2) provides, in relevant part that "Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred."Accordingly, said the Appellate Division, "[a]n employee is eligible for a a transfer pursuant to Civil Service Law §70(2) only if he or she is a 'necessary ... employee' - i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred.

N.B. Had the "transfer of function" involved duties performed by an employee in the unclassified service, the provisions of Education Law §3014-a would control. §3014-a addresses the rights of educators in the event a BOCES takes over a program formerly operated by a school district or by a county vocational education and extension board.

Decision cited as 2016 NY Slip Op 08139, Appellate Division, Third Department

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