New York State Comptroller concludes State agencies could save millions by eliminating service contracts

New York State Comptroller concludes State agencies could save millions by eliminating service contracts
Source: Office of the State Comptroller

New York State agencies could save millions of dollars annually by maximizing available revenues and by eliminating unneeded personal and miscellaneous service contracts, according to three audits released on June 30, 2010 by State Comptroller Thomas P. DiNapoli.

The full text of the Comptroller’s press release, including links to the relevant audit reports, is posted on the Internet at:http://www.osc.state.ny.us/press/releases/july10/070110a.htm

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave

Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis. The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months. Lane was absent four consecutive days beginning July 23, 2008. In violation of company policy, he did not call in his absences. When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying. The company fired Lane.

Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement. He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis. An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis. The company moved for summary judgment, arguing that the absence to clean up the flooded basement was not covered by the FMLA. The court agreed with the company.

The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments. The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition. He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding. Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother. 29 CFR 825.124(a).

Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave.

Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010).
http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Mr. Bosland Comments: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited. Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition. Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care. Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all. He may have also provided her psychological care by relieving her of this responsibility. Sitting water may have presented safety issues as well. Apparently, these arguments were not sufficiently developed for the court.

One could argue that the court's interpretation of "caring for" is overly restrictive. For example, Lane goes over to his mother's home to make her a meal. In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her. While his mother eats he goes down into the basement for something. In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating? Is physical and psychological care so limited? If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification? What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily. Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother? Is that what the FMLA is all about?

At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.

Is there a right to §207-c benefits if an individual refuses to perform light duty?

Is there a right to §207-c benefits if an individual refuses to perform light duty?
Matter of Park v Kapica, 8 N.Y.3d 302

John Park, a police officer employed by the Town of Greenburgh, underwent surgery in June 2002 after sustaining an injury in the line of duty. He requested, and was approved for, General Municipal Law §207-c(1) benefits.

In March 2003, the Town of Greenburgh’s medical examiner said that Park could return to work in a sedentary capacity. Accordingly, Parks was told to report for light duty starting April 21, 2003.

Park objected and submitted a report from his treating physician indicating that he had a “permanent total disability”* and requested a hearing on the issue of his ability to return to work.

A hearing was scheduled and a hearing officer was designated. Park, however, objected, contending that “any hearing had to be conducted before the Town Board pursuant to the Westchester County Police Act [WCPA].”** Supreme Court denied Park's application to stay the hearing. Park, however, refused to participate and the hearing was held in absentia.

The Hearing Officer concluded that Park (1) was fit to return to light duty, (2) that his refusal to do so was without justification, and (3) that the Town could recoup any §207-c benefits it paid to Park from April 21, 2003 until such time as he returned to work.

Rather than return to work, Park retired on August 26, 2003.

Park then filed a second lawsuit, seeking, among other things, the annulment of the Hearing Officer's determination that the Town could recoup §207-c benefits paid to him.

Supreme Court granted the petition, ruling that the Town had no authority to recoup payments made to Park prior to the Hearing Officer's finding that he was fit for light duty and the Appellate Division affirmed the lower court’s ruling.

Ultimately the Court of Appeals was asked to review these rulings.

The court initially observed that:

1. The continued receipt of §207-c disability payments is not absolute, however. A municipality is entitled to its own medical examination of its employee and if, in that physician's opinion, the officer can perform “specified types of light duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to return to work if a light-duty assignment “is available and offered to him”

2. The right to receive §207-c disability payments constitutes “a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated,” and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of “continued total disability.”

In response to Park's claim that the Town should have provided for his §207-c hearing in accordance with §7 of the WCPA, the Court of Appeals said that §7 applies to disciplinary actions and because Park was not subject to discipline or to the threat of termination for contesting the medical examiner's light-duty determination, neither it, nor Civil Service Law §75, applied in this situation.

It ruled that the Appellate Division “erred in stating that Civil Service Law §75 should be read in conjunction with General Municipal Law §207-c, a holding that implies that all due process hearings pursuant to §207-c must comply with Civil Service Law §75.”

Such is not the case, said the court. It was only concerned with whether Park was afforded due process in contesting the Town’s medical examiner's determination, which bears no relation to a disciplinary proceeding. However, the court did affirm the Appellate Divisions order “because the procedure employed by the Town concerning Park's challenge to the medical examiner's light-duty determination comported with procedural due process.”

In the absence of a statutory prescription with respect to conducting such hearings or a procedure established by collective bargaining pursuant to the Taylor Law for this purpose, the Court of Appeals said that “the Town was free to fashion a hearing remedy so long as its procedure afforded Park due process.”

Finding that Park's interest in the continued receipt of disability benefits was adequately protected by the Town's due process procedure, the court ruled that while he elected not to participate in the hearing, Park was, nevertheless, given the opportunity to contest the Town’s medical examiner's light-duty determination by presenting his own witnesses and cross-examining the Town's witnesses.

As to the Town’s right to recoup §207-c payments made to Park between April 21, 2003, the date he was initially directed to begin his light-duty assignment, and August 4, 2003, the date he was directed to begin his light-duty assignment after the Hearing Officer affirmed the medical examiner's findings, the Court of Appeals ruled that there was no such right available to the Town.

In the words of the court: “There is no provision in §207-c allowing the recoupment of disability payments made to an officer who is later found to be able to work.”

In contrast, a municipality may discontinue disability payments once its medical examiner finds that the officer can perform a light-duty assignment and the officer “refuse[s] to perform” that duty.” Should an officer refuse to return to work and fail to provide medical proof that he is unable to do so, the medical examiner's opinion is dispositive and §207-c disability payments may be discontinued without a hearing.***

However, a municipality is not permitted to recoup §207-c payments where, as here, the officer avails himself of due process protections by challenging the appointing authority’s medical examiner's determination because such a challenge cannot be equated to his or her refusal to return to duty.

* §207-c(2) provides, in pertinent part, that “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement … If application for such retirement allowance or pension is not made by such policeman, application therefore may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.”

** Section 7 of the Westchester County Police Act, entitled “Discipline and charges,” states that no member of a police department “shall be fined, reprimanded, removed or dismissed” until the charges have been investigated, and further provides that the trial of those charges “shall not be delegated and must be heard by the town board or the full board of police commissioners.”

*** The Court of Appeals noted that its decision was based “solely” on it reading of the applicable statutes and it should not be viewed as suggesting that “there would be any constitutional bar to a recoupment of benefits in a situation like this one, had the Legislature so provided.”

Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing

Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing
Wachtmeiser v Andrus, App. Div., Third Dept., 279 A.D.2d 822

Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without pay for up to thirty days pending resolutions of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.

In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeiser on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.

April 2, 1998, however, Wachtmeiser was again removed from the payroll, this time in accordance with the terms of her signed "release." The release provided that Wachtmeiser agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.

As the Wachtmeiser decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.

If an employee seeks such a postponement, typically he or she will be required stipulate to being removed from the payroll for a period equal to the length of postponement of the hearing he or she requests. In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.

Wachtmeiser, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeiser sued for her back pay for the period she was suspended without pay in excess of thirty days.

The Appellate Division rejected Wachtmeiser's claim for back pay for this period as she had been removed from the payroll consistent with the terms of the "release." It had no difficulty with concept of suspending the employee without pay under such circumstances.

The court also rejected Wachtmeiser's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.

Further, the court rejected Wachtmeiser's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeiser's] misconduct.”

Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes

Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes
Matter of Dwaine E. Williams v Commissioner of Labor, 47 AD3d 994

Dwaine E. Williams, a school safety agent with the New York City Police Department for some six years, lived in Westchester County. The City discharged Williams from his position for failing to comply with a provision of the New York City Administrative Code that mandated that he maintain a residence within New York City.

His application for unemployment insurance benefits was rejected on the grounds that his employment was terminated due to misconduct; i.e., failing to comply with his employer’s residency rules.

Finding that City’s residency requirement is a reasonable rule that Williams elected to ignore, the Appellate Division sustained the rejection of Williams’ application for unemployment insurance benefits, holding that "[i]t is well settled that the failure to comply with an employer's reasonable rules can constitute misconduct disqualifying one from receiving unemployment insurance benefits."

State Comptroller DiNapoli reports that school aid payments have been made

State Comptroller DiNapoli reports that school aid payments are being processed
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reported that school aid to school districts and BOCES totaling nearly $1.6 billion, is being processed. These payments are typically made by June 1, but because of the State’s “cash crunch in March” the Governor delayed these payments until the end of June.

The Governor also delayed the March school aid payments until June 1, which totaled about $2.1 billion.

A list of the State Aid distributed to each BOCES and to each school district is posted on the Internet at: http://www.osc.state.ny.us/press/releases/june10/schoolaidpd.pdf

Appointment of an eligible from an expired eligible list is impossible as a matter of law

Appointment of an eligible from an expired eligible list is impossible as a matter of law
Matter of Farrison, 2010 NY Slip Op 51113(U), Decided on June 24, 2010, Supreme Court, New York County, Judge Hunter [Not selected for publication in the Official Reports]

John D. Farrison filed a petition pursuant to CPLR Article 78 seeking an appointment as a New York City Correction Officer. Farrison contended that the Department of Correction's [DOC] decision not to select him from the eligible list resulting from Correction Officer Examination 2004 for such an appointment to one of three available vacancies was arbitrary, capricious, and contrary to law.

Supreme Court dismissed Farrison’s petition, commenting that the redress he sought would require that he be appointed from the eligible list resulting from Correction Officer Examination No. 4002, a list that had expired prior to his initiation of his Article 78 action.

In view of this, Judge Hunter said Farrison claim that that DOC's decision not to appoint as a Correction Officer was arbitrary, capricious, and contrary to law, is without merit. The court explained that once a civil service eligible list expires, it cannot be revived and an individual whose name appears on an expired eligibility list cannot be appointed to a civil service position on that basis.

As the Court of Appeals said in Cash v Bates, 301 NY 258, appointment to a civil service title from an expired civil service eligible list a "legal impossibility."*

In addition, Judge Hunter cited Hancock v. City of New York, 272 AD2d 80, in which the Appellate Division, held that a "plaintiff, whose name appears on a now-expired civil service list, is no longer entitled to be hired as a correction officer, notwithstanding that he was improperly declared to have been ineligible for the job."

* To provide for a remedy for the "impossiblitity" of appointing an individual from an expired eligible list, Section 243.7 of the Military Law authorizes the establishment of "special eligible lists" to accommodate situations involving an eligible list that expired while a candidate is on ordered military service. It provides that "Any person whose name is on any eligible list ... while in military duty ... is reached for certification during his [or her] military duty ... [his or her name] shall be placed on a special eligible list in the order of his [or her] original standing ... [and such special eligible] list shall be certified before certification shall be made from a subsequent open competitive or promotion eligible list for the same position .... Such names shall remain on such special eligible list for a period of two years after the termination of such military duty...."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51113.htm

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?
Roberson v Ward, App. Div., First Dept., 278 A.D.2d 180; motion for leave to appeal denied, 96 N.Y.2d 717

When must a public officer,* arrested and convicted of a crime, be given a disciplinary hearing in contrast to being summarily terminated? As the Roberson decision demonstrates, it depends on the nature of the offense.

In Bratton v Foley, 92 NY2d 981, the Court of Appeals held that a police officer is removed from his or her position by operation of law if he or she is convicted of a particular crime falling in the "oath of office" or “the conviction of a felony “ category pursuant to Public Officers Law Section 30.1(e).**

In contrast, said the high court, for other convictions -- i.e., those not constituting a violation of the police officer's oath of office, or in cases where Section 30.1(e) is not cited as authority for the termination, "a public hearing is required...." If the police officer is not given such a hearing, he or she may demand one.

The lesson in the Roberson decision is that in the latter type of situation, the police officer must make a timely demand for the hearing.

In 1989 Cedric T. Roberson, was “automatically terminated” from his position as a New York City police officer upon his misdemeanor conviction of menacing in the third degree. Apparently the department relied on an administrative rule as authority for his "automatic termination" rather than Section 30.1(e) of the Public Officers Law.

Some ten years later he asked the court to annul his dismissal, claiming that he was entitled to a "hearing" before he could be terminated from his position.In response to Roberson's claim that he was entitled to a pretermination hearing as announced in Bratton, the court said that "the proceeding is barred by laches...."***

According to the ruling, "[i]t is no excuse for any subsequent delay in challenging his termination that he believed, as a result of advice from his attorney, who opined that any proceeding he might bring to challenge his termination would be futile unless his menacing conviction was overturned on appeal, which did not occur."

What is a "reasonable delay?" It appears that to be "reasonable," it must be a delay of less than two years. According to the decision, Robinson also attempted to obtain a copy of the "order of termination" pursuant to the Freedom of Information Law subsequent to his termination from the police force. However, said the court, this two-year delay "was also unreasonable."


* Although not all public employees are public officers, all public officers are public employees. A police officer is a public officer.

** However, the public officer is entitled to a so-called Bratton Hearing under certain circumstances. A Bratton Hearing flows from Public Officers Law §30.1(e), which provides that a public officer removed from office following his or her conviction of a felony, or a crime involving a violation of his or her oath of office, other than an elected officer, “may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.”

*** A party is guilty of laches if he or she unreasonably delays taking action to enforce his or her legal right[s].

Conducting an administrative hearing

Conducting an administrative hearing
Flood v NYSERS, App. Div., First Dept., 279 A.D.2d 304

Clearly an individual may not be found guilty of disciplinary charges not alleged in the notice of discipline served on the employee. Similarly, a hearing officer in an administrative hearing may not rely on evidence in the record in making his or her determination if the other party was not permitted to challenge or rebut such evidence.

Theresa Flood, a teacher's assistant, was injured aboard a bus during a field trip in November 1990. The New York State Employee's Retirement System denied her application for accidental disability retirement benefits on the grounds that she had not been "incapacitated ... as the natural and proximate result of an accident sustained in ... service". Flood appealed and the issues were framed by the initial Hearing Officer designated to consider the matter as follows:

1. Was there an accident?

2. Is the applicant permanentlyincapacitated? and

3. If so, is the incapacity a proximate result ofthe accident?

The appeal was eventually considered by a different Hearing Officer. Flood's attorney framed the issue before the new hearing officer as simply whether Flood's disability was "the natural and proximate result of an accident sustained in . . . service".

The new hearing officer agreed, cutting off any questioning on "incapacity" on the grounds that there was no "notice to the applicant on that point." He said "causation" was the sole issue to be resolved.

At the conclusion of the hearing the second hearing officer, after acknowledging that the hearings had been limited to the issue of causation, said that "all three questions (accident, incapacity and causation) were once again at issue." His decision, based on the Retirement System's expert's testimony: Flood had failed to establish a "permanent incapacity." That being the case, he denied her appeal without considering the issue of proximate cause.

The Appellate Division vacated the hearing officer's determination, pointing out that Flood "never had an opportunity to pursue or challenge [NYSERS's] testimonial evidence because the issue at the hearing, as framed in the notice, was limited to the question of causation."

The Appellate Division said that "[i]f the issues are to be expanded to cover accident and incapacity as well, then the interests of fairness dictate that [Flood] should have an opportunity to cross-examine the witness and present her own evidence in that respect."

The matter was returned to the Retirement System for a new hearing.

Demanding negotiations concerning changes in the employer's payroll system

Demanding negotiations concerning changes in the employer's payroll system
CSEA and Nassau County, 31 PERB 3032

Nassau County employees in a negotiating unit represented by the Civil Service Employees Association [CSEA] had been receiving their regular pay in one check and any payment for overtime in a second, supplemental check.

The County unilaterally discontinued its practice of issuing two separate paychecks to employees entitled to overtime when it adopted a new payroll system. The new system allowed it to combine an employee’s regular pay and his or her overtime pay, and other payments due the employee, in a single paycheck. The new payroll system also resulted in other processing and payment schedule changes.

CSEA filed an unfair labor practice charge with PERB contending that the payroll change initiated by Nassau County changed or affected mandatory subjects of negotiations and therefore Nassau was barred from making the change unilaterally.

PERB upheld its ALJ’s dismissal of the charge, ruling that Nassau County did not violate the Taylor Law by unilaterally deciding to include overtime [and other payments] in the employees regular paycheck.

Another issue involved the recording of leave accruals and usage. CSEA claimed that the County had discontinued providing unit members with a report of their time and leave record at the beginning of each year. The employees would then use the report to record their accrual and use of leave credits.

PERB said that this had not changed. Rather, the County had discontinued manually entering time and leave information on time cards for record keeping purposes and maintained that information using its new payroll system program. Employees wishing to check their leave and accrual records could do so by viewing a computer screen or reading a computer print out rather than reviewing a traditional “time card.”

Significantly, PERB said that an employer may maintain a record of attendance of its employees and the maintenance of such a record is not mandatorily negotiable.

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims
Watertown v PERB, 95 N.Y.2d 73

In the course of collective bargaining under the Taylor Law the Watertown Police Benevolent Association [PBA] demanded that the question of a police officer’s eligibility for disability benefits pursuant to General Municipal Law Section 207-c be submitted to arbitration.*

When Watertown declined to negotiate the proposal on the grounds that it was not a mandatory subject of negotiations, PBA filed an unfair practice charge with PERB. PERB decided that “because 207-c benefits are a form of wages, procedures which condition, restrict or potentially deny an employee’s receipt of those benefits are terms and conditions of employment and, therefore, are subject to mandatory bargaining” [30 PERB 3072].

PERB also decided that arbitration was an appropriate means of resolving such disputes, holding that “the method for review of a municipality’s determination of eligibility under 207-c is such a procedure.”

Noting that Watertown conceded that “the establishment of 207-c procedures is subject to mandatory negotiations (because the procedure affect terms and conditions of employment), Justice Donahue rejected Watertown’s argument that “the interjection of arbitration in the 207-c eligibility process ‘simply guts’ the municipality’s right to determine eligibility and that [Civil Practice Law and Rules Article 78] is the exclusive method of review.”**

The Court of Appeals agreed, holding that he procedures for contesting the employer’s determinations made pursuant to General Municipal Law Section 207-c were mandatory subject of bargaining.

* General Municipal Law Section 207-c provides disability benefits for police officers injured in the line of duty, including the continuation of the officer in full pay status and the payment of his or her medical expenses associated with the injury. Section 207-a of the General Municipal Law provides for similar benefits for firefighters injured in the line of duty.

** A challenge to an arbitration award is processed pursuant to Article 75 of the Civil Practive Rules and Law rather than via an Article 78 action.

Provisional employee has no right to continued employment as a provisional

Provisional employee has no right to continued employment as a provisional appointee
Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.

Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.

On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.

Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”

Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***

The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.

A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”

* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].

** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.

*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.