May 30, 2018

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State


Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State
Cannavo v Olatoye, 2018 NY Slip Op 03740, Appellate Division, First Department

The Cannavo decision by the Appellate Division is set out below, with comments concerning some of the more "troublesome" elements of the ruling set out in bold in blue.

Supreme Court denied Cannavo's application for reinstatement to his former position with the New York City Housing Authority (NYCHA), and dismissing the proceeding brought pursuant to CPLR Article 78, which ruling was unanimously affirmed, by the Appellate Division without costs. The Appellate Division's ruling states:

"The article 78 court correctly determined, upon consideration of all the facts, that respondents' denial of petitioner's application for reinstatement to his former position with NYCHA was not arbitrary and capricious or an abuse of discretion (see Matter of Roberts v Gavin, 96 AD3d 669, 671 [1st Dept 2012])."

The decision reports that Cannao sought reinstatement with NYCHA following his retirement from NYCHA. As reinstatement of a former employee to his or her former position is a matter subject to the exercise of the discretion of the appointing authority, and absent such denial of the request for a discriminatory reason or unlawful purpose, the appointing authority's denial of the retiree's request for reinstatement is otherwise lawful.

Indeed, a retiree may be reemployed following his or her retirement subject to the limitations set out in §150 of the Civil Service Law. Further, §13-119 and 13-178 of the New York City Administrative Code addressed a retired member's eligibility to rejoin the relevant retirement system without any limitation based on "jurisdictional classification" of the position to which reemployment is sought.
The decision then continues:

"Despite petitioner's previous position as a "civil service" employee with the New York City Department of Housing Preservation and Development (HPD), when he was hired by NYCHA in 1996, it was in a non-competitive position that was not eligible for civil service status, as NYCHA's records reflect." 

The Civil Service of the State of New York, in contrast to the "military service" of the State of New York, consists of positions Exempt Class [CSL §41]; the Non-competitive Class [CSL §42]; the Labor Class [CSL §43] and the Competitive Class [CSL §44], which positions are in the "Classified Service" and positions the Unclassified Service, which positions are set out in CSL §35. 

No explanation or justification is provided with respect to the representation that Canno "was not eligible for civil service status" with NYCHA.

As to the status of HPD and NYCHA, the list of "New York City Agencies" listed on the Official Website of the City of New York includes, among other agencies:


As Yul Brynner exclaims in The King and I, "is a puzzlement!" as to why Canno "was not eligible for civil service status" with NYCHA because of the jurisdictional class of the position.

Upon a review of records kept by HPD, NYCHA, and the Department of Citywide Administrative Services, respondents determined that petitioner's civil service status had not been formally transferred from HPD to NYCHA, and, since only those who have civil service status are eligible for reinstatement following retirement, rationally concluded that petitioner was not eligible for reinstatement.

This conclusion is troublesome as it appears that Canno resigned from his position in the "Civil Service" with HPD in favor of a de novo appointment to a position in "Civil Service" in the Non-competitive Class with NYHCA. The decision is silent with respect to the basis for the determination that petitioner lacked "civil service status" with NYCHA.

Further, there is no bar to the reinstatement of a retiree to his or her former position should the appointing authority approve such a reinstatement regardless of the jurisdictional classification of the position involved. 

The reinstatement, reappointment, reemployment or new appointment of a person otherwise qualified receiving a New York State public retirement system benefit is permitted at the discretion of the appointing authority, subject to the provisions and limitations set out in CSL §150 with respect to the suspension  of the individual's  pension  and  annuity and limits on compensation during such public employment.
The opinion continues:

While petitioner claims that certain NYCHA documents — including a notification of appointment and performance reviews he received in 1996 — reflect that he maintained his competitive civil service status, the record shows that he subsequently had many conversations with Human Resources and took actions to obtain a formal transfer. Moreover, attached to the petition is a 1996 memo from Human Resources informing petitioner that he did not, in fact, possess this status. As the court found, this is not a rare or extraordinary case in which the doctrine of estoppel or laches should be applied against a government agency (see Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]).

With respect to the noting that Canno "took actions to obtain a formal transfer" as here relevant [see NYCRR 1.2(b)(1)], assuming, but not conceding, that such was, in fact, the case, a transfer from a position under the jurisdiction of one appointing authority to a position under the jurisdiction of a different appointing authority requires the approval of both appointing authorities.

In contrast, as indicated by 4 NYCRR 1.2(b)(2) , the placement of an individual under the jurisdiction of the appointing authority to another position under the jurisdiction of the same appointing authority having the same title is a "reassignment" not a "transfer."

The bottom line: A individual who retired from a position in the Classified Service is not barred from being reinstated to his or her former position if available and otherwise permitted by the controlling provisions of the Civil Service Law regardless of his or her pre-retirement "appointment status" in such position, i.e., permanent, contingent permanent, temporary, provisional, military substitute, or term and regardless of the jurisdictional classification  or budgetary status of the position in question if otherwise available for appointment thereto. 

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 24, 2018
CLERK

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2018/2018_03740.htm


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