June 27, 2018

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law


Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law
Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:


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