October 21, 2019

Confusing permanent appointment with attaining tenure in the position


In Matter of Civil Serv. Employees Assn., Local 1000, AFSCME AFL-CIO v New York State Off. of Children & Family Servs., 174 AD3d 1206 [CSEA] and, similarly, in Ayers v City of Mount Vernon, Appellate Division, Second Department, 2019 NY Slip Op 07230 [Ayers], it appears that there some misunderstanding or misapplication of the words of art "permanent appointment" and "tenure" in determining the employment  status of a public employee while he or she is serving a probationary period.

In CSEA, the court states: "Respondent determined that, at the time of the termination, Sansky had 25 days remaining in his probationary period and that, because he had not yet been permanently appointed to the position of Cadet Leader 1, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement" [emphasis supplied].

In Ayers, the "Notice of Appointment" reported in the decision indicated that the plaintiff, Andrea L. Ayers, would serve a six-month probationary period, after which she would be appointed to her position permanently [emphasis supplied].

However, in both situations as described in these decisions the "appointment status" of the individual was that of a "permanent employee" but the individual had not attained a "tenured" appointment status in the position. This is significant with respect to the appointee's right to "notice and hearing" as a condition precedent to termination for cause and for other purposes set out in law.

As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "appointment" but [1] does not attain tenure in the position until he or she satisfactorily completes his or her maximum period of probation or [2] attains tenure by estoppel, acquisition, default, or otherwise by operation of law or [3] attains tenure 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.

York v McGuire, 63 NY2d 760, sets 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.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in contrast to the date on which an appointee "attains tenure" is illustrated in other provisions of the Civil Service Law such as §80.1 [layoff] where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.

The CSEA decision is posted on the Internet at:

The Ayers decision is posted on the Internet at:

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