March 25, 2019

Upon permanent appointment to a position in the classified service the officer or employee is typically required to serve a specified minimum period of probation, but not to exceed a specified maximum period of probation.


Upon permanent appointment to a position in the classified service the officer or employee is typically set in terms of his or her serving  [1] a specified minimum period of probation and [2] a specified maximum period of probation.

The appointing authorities may be given discretion to waive a limited period of a probationary officer's or employee's absence during his or her probationary period pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the officer or the employee is extended by the number of workdays of such absences are not counted as "time served" during the individual's probationary period.”As the Court of Appeals held in Boyle v Koch, 68 NY2d 60, an employee's probationary period may be extended in the event the employee is given a “light duty” or some other alternate assignment while serving as a probationer. 

In this action the petitioner [Probationer] was permanently appointed to his position effective May 16, 2013 and his probationary period was set at not less than two-month and not more than two-years. When Probationer was subsequently terminated from his position effective March 2, 2016, he initiated an Article 78 action contending that his probationary period had ended prior to the termination of his employment and was a tenured employee entitled to notice and hearing as a condition precedent to his termination from his position. In effect, Probationer argued that he had attained tenure by estoppel.

Citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, the Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all" after completing his or her minimum period of probation and before the end of his or her maximum period of probation without a hearing and without a statement of reasons for his or her termination in the absence of evidence that the termination was "in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Probationer, however, contended that he had attained tenure** in his position upon his being continued in service after he had completed the minimum two-month period of his probationary period.

The Appellate Division disagreed, noting that the two-month minimum period of probation was simply the beginning portion of the two-year probationary term during which two-month period he could be terminated only upon notice and hearing.*** Further, opined the court, the appointing authority is not required to advise a probationer that his or her probationary term of service is to be continued after the completion of his or her initial two-month period of probationary service.

The Appellate Division said it agreed with the Supreme Court's determination that the termination of Probationer's employment occurred while he was still a probationary employee in view of the fact that his probationary period had been extended due to his absences during his probationary period as a period of probationary employment is measured by the number of days a probationer is actually working at the job and "may be extended by the number of days that the probationary employee does not perform the duties of the position."

In addition, the City maintained that Probationer had not acquired tenure in the position by reason of his having been continued in service after he had completed his maximum period of probation. Rather the Probationer was terminated before having completing his maximum period of probation as his probationary term had been extended [1] by the number of days that he was required to work but was absent; and [2]  by his agreeing to extension his probationary period  based upon his attendance, punctuality, and disciplinary records.

Finding that Probationer had failed to demonstrate that the termination of his employment during his probationary period was made in bad faith or for a constitutionally impermissible or an illegal purpose or in violation of statutory or decisional law, the Appellate Division sustained the Supreme Court's ruling denying Probationer's petition and dismissing the proceeding.

See, for example, 4 NYCRR 4.5(g), “Absence during probationary term”.

** The decision implies that a probationary appointment does not become permanent until the completion of the minimum period of probation. As a general rule, an individual is initially appointed to the position as "permanent" effective on the date of his or her appointment but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

*** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_02093.htm

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