Determining the status and rights of an employee in the public service terminated from his or her employment
Hanson v Crandell, 2016 NY Slip Op 05604, Appellate Division, Third Department
The Supreme Court dismissed William A. Hanson’sCPLR Article 78 petition seeking a review a determination of Commissioner of the Schoharie County Department of Public Works [Appointing Authority] terminating Hanson’s employment with the Department. This case provides an opportunity to examine the combinations and permutations of appointment to and tenure status in positions in the public service in New York State.
Hanson was initially employed by the Appointing Authority as Lead Cleaner, a position in the noncompetitive class of the classified service, and served in that title until December 24, 2012 at which time the position became “unfunded” and his employment in that title was discontinued.
Analysis: This appears to be a “layoff situation.” However, employees of a political subdivision of the State are not within the ambit of §80-a of the Civil Service Law which applies only to the suspension or demotion of employees of the State as the employer upon the abolition or reduction of State positions in the non-competitive class. Employees of a political subdivision of the State may have “layoff rights” as the result of collective bargaining pursuant to Article 14 of the Civil Service Law [the Taylor Law] or a local law, rule or regulation enacted by a political subdivision of the State adopted prior to the effective date of the Taylor Law.
Hanson was appointed Mechanical Equipment Operator I [MEO] by the Appointing Authority effective December 24, 2012. The MEO position was also a position in the noncompetitive class and Hanson's appointment was subject to his successfully completing a probationary period of not less than eight weeks nor more than 52 weeks in accordance with Schoharie County's Civil Service rules.
An interim probationary service report indicated that Hanson’s job performance was satisfactory and stated that his probationary period was set to expire on December 23, 2013. About December 19, 2013, Hanson was given a “final probationary report” that stated that his performance was unsatisfactory and included the recommendation that he be terminated from his MEO position. The next day Hanson was informed that his employment was terminated effective December 21, 2013.
The employee organization representing Hanson filed grievances upon his behalf alleging that that Hanson was improperly denied an exit interview and that his termination was without just cause. The County's Board of Supervisors, however, denied both grievances, and a subsequent demand to arbitrate those grievances was withdrawn by the employee organization.
Hanson initiated an Article 78 action alleging that his discharge was in bad faith, constituted an abuse of the Appointing Authority's discretion and was arbitrary and capricious. Ultimately, Supreme Court dismissed Hanson’s application, finding that he failed to demonstrate that the Appointing Authority acted arbitrarily or in bad faith. Hanson appealed the Supreme Court’s ruling.
The Appellate Division indicated that Hanson’s primary arguments on appeal were as follows:
1. He was transferred to the MEO position and, therefore, he acquired certain rights.
Analysis: The decision reports that an affidavit provided by the County's deputy personnel director “makes clear that the transfer provisions embodied in Schoharie County's Civil Service Rules apply only to competitive class appointments,” i.e., Rule XVI, Transfers, provides, in pertinent part, “any individual serving in a competitive class position as a permanent appointee may be permanently appointed to another competitive class position subject to these rules without further competitive examination.,”
In any event, Hanson’s reliance on “transfer” as the personnel transaction involved was misplaced. The term “transfer” describes the movement of an employee from one agency to another agency under the jurisdiction of a different appointing authority and typically requires the approval of the employee and both appointing authorities.
In contrast, the term “reassignment” is used to describe the movement of an employee from one position to another position with the same or a similar title under the jurisdiction of the same appointing authority and does not require the consent of the individual.
Clearly Hanson was not “transferred” as he was appointed to a position under the jurisdiction of the same appointing authority, nor does it appear that he was “reassigned.” Although the positions of Lead Cleaner and Mechanical Equipment Operator I are both positions in the noncompetitive class, they involve significantly different duties. Accordingly Hanson's appointment to the MEO position was to a new title, with new duties, and thus subject to his satisfactory completion of a probationary period in the new title.
2. He was a tenured employee at the time of his discharge.
Analysis: Although Hanson had been permanently appointed to the position of MEO, he had not yet completed his maximum period of probation prior to the effective date of his termination and thus he had not attained tenure* in the position. Civil Service Law §80, for example, illustrates the significance of an employee’s effective date of permanent appointment as it provides that “[w]here, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among 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, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made.”
A similar provision is set out in Civil Service Law §80-a, which Section addresses the suspension or demotion of an employee of the State as the employer upon the abolition or reduction of non-competitive class State position.
Neither §80 nor §80-a set the date on which the individual initially attained "tenure" as the relevant date in determining his or her seniority for the purposes of layoff.
3. His "MEO probationary period" was improperly extended after the initial eight-week period.
Analysis: Hanson, said the Appellate Division, “admitted that, upon accepting the MEO position, he was placed on probation for a period of 52 weeks — with said probationary period to expire on December 23, 2013.” As the Appointing Authority did not provide Hanson with any written notice following completion of his minimum period of probation that his probationary term was successfully completed prior to December 23, 2013, he was a probationary employee on the effective date of his termination.**
It should also be noted that in Mendez v Valenti, 101 AD2d 612, the Appellate Division ruled that where the probationer has been given timely notice that he or she will be terminated because he or she had not satisfactory completed the probationary period, so long as the termination of a probationary employee is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.
Turning to Hanson’s termination itself, the Appellate Division said that "[a] probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason."
Analysis: The Appellate Division said that it was satisfied that the Appointing Authority had complied with the relevant Schoharie County Civil Service Rules governing the evaluation and termination of probationary employees with respect to Hanson and its “further review of the record otherwise fails to disclose any evidence of bad faith or an improper or impermissible reason for [Hanson's] discharge.”
Finally, the Appellate Division observed that “inasmuch as [Hanson] had not attained more than one year of continuous, full-time service in the MEO position at the time of his discharge, he could not avail himself of the discipline-for-just-cause provisions of the collective bargaining agreement between the County and his bargaining representative.”
Analysis: 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.”
In contrast, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement, As the Court of Appeals held in York v McGuire, supra, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.
* Although Schoharie County Civil Service Rule XIII (1)(e) provides that "[a]n appointment shall become permanent upon the retention of the probationer after his/her completion of the maximum period of probation or upon earlier written notice following completion of the minimum period of probation that his/her probationary term is successfully completed," it would be more accurate were the rule to read “shall become tenured in the position upon the retention of the probationer after his/her completion of the maximum period of probation” [emphasis supplied]. An individual appointed to an unencumbered position in the competitive class from an eligible list holds a “permanent status” on the effective dates of his or her appointment, subject to attaining tenure in the position upon satisfactory completion of his or her probationary period. See, also, Snyder v Civil Service Commission, 75 NY2d 981, which addresses the tenure status of a person upon his or her "contingent permanent appointment" to a position in the competitive class.
** Except where a probationary employee attains tenure by estoppel or "acquisition," or a provision of law addressing the right of an individual to continue to hold tenure upon the jurisdictional reclassification of he or her position [See for example: Fornara v Schroeder, 261 NY 363, Education Law §365-a.10(a) and Civil Service Law §45], specific action by the appointing authority granting tenure to the probationary employee prior the competition of his or her maximum period of probation is required.
The decision is posted on the Internet at: