Promotion to entrance level positions

Promotion to entrance level positions

Gallagher v City of New York, 307 A.D.2d 76 

May the state or a municipal civil service commission authorize a promotion examination for an entrance level position? This was the significant issue explored by Justice Solomon in the Gallagher case.

Kevin E. Gallagher, as president of the Uniformed Firefighters Association, sued the City of New York's Department of Citywide Administrative Services [DCAS] in an effort to bar the use of a "special promotional list" in place of, or ahead of, a list established by open competitive examination for appointment to New York City firefighter positions.

According to the decision, DCAS held two identical written examinations for firefighter on February 27, 1999. One examination, No. 7514, was open only to employees of the New York City Fire Department [FDNY] and was treated as a "promotion examination." The other, No. 7029, was open to members of the general public who met age and other eligibility requirements. Essentially, only the individuals transferred into FDNY from the Emergency Medical Service of the City's Health and Hospital Corporation were eligible for examination 7514.

DCAS established an eligible list composed exclusively of candidates who passed examination 7513 and a number of appointments were made from that list. No candidate who only took examination 7029 was appointed as a fire fighter.

Gallagher asked the court to require the DCAS to "merge" the two lists and make all future appointments from this merged list on the theory that since the position of firefighter was an entrance level position, providing for a "promotion examination" for that title violated the Civil Service Law.

Justice Solomon noted that the Court of Appeals in Murray v McNamara, 303 NY 140, said that:

while it was mindful of the legislative policy embodied in then Civil Service Law Section 16 (now Section 52), favoring the filling of vacancies through promotions, under Article 5, section 6 of the Constitution, "the right to appointment is entitled to the same protection as the right to promotion ...."

Essentially the Court of Appeals ruled that "promotion examinations may be held only where the employees sought to be promoted have passed an open examination for a lower grade in the type of work involved in the position to which promotion is sought." 

In Beloten v Diamond, 276 AD2d 438, the Appellate Division, First Department, with specific reference to employees of the FDNY in titles that were carried over from EMS, held that "the position of firefighter is an 'entry level' position," and, prior to the transfer of EMS to the FDNY, there could be no "promotion" to that position.

After weighting these several decisions and the arguments made by the parties, Justice Solomon decided that "FDNY shall make appointments of candidates for the position of firefighter from a merged list encompassing both the promotional and open lists." In the words of Justice Solomon:

Fairness dictates this result because the examinations were identical, and the determination by DCAS to exhaust the promotional list before appointing candidates from the open list was arbitrary and capricious....

The Court than prohibited FDNY from making any future firefighter appointments from other than the merged list.

Availability of a record essential in reviewing administrative determinations

Availability of a record essential in reviewing administrative determinations

Gumb v Port Authority of New York and New Jersey, NYS Supreme Court, Ia Part 6, Justice Bransten [Not selected for publication in the Official Reports.]

Citing Pell v Board of Education, 34 NY 2d 222, Justice Bransten said that it is well-settled that the standard for judicial review of an administrative determination in an appeal brought pursuant to CPLR Article 78 is limited to a court's determining whether or not the agency acted arbitrarily or capriciously in making its decision.

Assume, however, the agency whose decision is under review, through no fault of its own, cannot produce the records it claims would demonstrate that its decision was neither arbitrary nor capricious. This was the situation underlying the Gumb case.

Kevin J. Gumb filed an application for appointment as a police officer with the New York-New Jersey Port Authority Police. After he took and passed the Authority's written test for the position, the Authority notified him that it had disqualified him for appointment as a police officer based on the evaluation of his psychological tests and interviews "which found ... personality traits incompatible with the unique demands and stresses of employment as a Port Authority Police Officer."

Gumb sued, claiming that the Port Authority's determination was arbitrary and capricious and amounted to an abuse of discretion.

The only available record concerning Gumb's testing: a letter sent to Gumb stating that:

Based upon the multiple written psychological screening tests administered and two individual interviews, it was determined by the Port Authority Office of Medical Services that [you] would be unsuited [sic] for the position of Police Officer for Port Authority Public Safety Division.

The medical records concerning Gumb's examination and evaluation were destroyed in the September 11 terrorist attacks on the World Trade Center. Under the circumstances, the Authority argued, the letters sent to Gumb should be sufficient evidence of the basis for its administrative determination disqualifying Gumb to justify the court's dismissal of his petition. In the words of the Authority, the loss of the actual record "is insignificant to the instant petition, because the record is clear that [Gumb] was interviewed twice and was found unsuitabl[e] for the position."

The court disagreed, noting that courts are obligated to undertake a limited review to ensure "administrative rationality" and must find that there is some "rational basis or credible evidence to support an administrative determination" in order to sustain the administrative action being challenged.

Although there was written correspondence to Gumb notifying him that he was not going to be certified based upon results of psychological examination, the court said that it had nothing to rely upon to determine the rationale behind the Authority's decision to disqualify him. Accordingly, Justice Bransten said that it would not "blindly defer to the governmental decision" and ordered the Authority to re-evaluate Gumb.

Significantly, the court did not conclude that the Port Authority was arbitrary and capricious in making its determination. Rather, Justice Bransten said that the court's difficulty concerned the fact that, through no fault on the part of the Authority, there simply was no administrative record to review.

Prospective duties considered in designating a position “managerial” or “confidential” within the meaning of the Taylor Law.

Prospective duties considered in designating a position “managerial” or “confidential” within the meaning of the Taylor Law.

Buffalo Council of Supervisors & Administrators and Buffalo City School District, 35 PERB 3018

Assistant school superintendents previously included in a negotiating unit who regularly participated in weekly meetings conducted by the school superintendent and who assisted in the formulation of recommendations concerning school operations and who were assigned major rolls in labor relations were properly designated managerial based on current and prospective labor relations duties. 

Arbitration award addressing a related but different issue does not revive an otherwise untimely cause of action

Arbitration award addressing a related but different issue does not revive an otherwise untimely cause of action

Stembridge v New York City Dept. of Education, 2011 NY Slip Op 07519, Appellate Division, First Department

Supreme Court dismissed Everett Stembridge’s petition alleging unlawful discrimination and wrongful termination as untimely, finding that Stembridge’s cause of action had accrued on August 15, 2006, when he was terminated from an Aspiring Principals program as he had not commenced this action until August 2009.  

Stembridge had argued that as a result of his prevailing in an arbitration held in 2009, which found that the New York City Department of Education could not recoup monies it had inadvertently paid to him following his termination from the program in August 2006.

The Appellate Division characterized this argument as “misplaced” as the 2009 arbitration did not create a new accrual date for the action alleging unlawful discrimination and, or, unlawful termination.

The court explained that the 2009 grievance “… did not deal with issues of either termination from the program or defendant's alleged discrimination, but only with whether there was a contractual basis for defendant to recoup the alleged overpayment.”

Accordingly, Stembridge could not rely on the 2009 arbitration determination for the purposes of claiming the present action, initiated in 2009, challenging his termination from to Aspiring Principals program in 2006 was timely filed nor that his ability to do so was revived by the Department’s seeking to recoup the monies it claimed that it had paid to him in error.

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2011 NY Slip Op 07431, Appellate Division, Second Department

In 1999 the New York City Transit Authority (“NYCTA”), its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority (“MABSTOA”) and the Transport Workers Union of America, Local 100 (“TWU”), entered into a collective bargaining agreement that, in pertinent part, provided for “the commingling of personnel, including bus operators,” between NYCTA and MADSTO for the purposes of selecting job assignments within both entities. TWU created a consolidated “seniority list” for bus operators it represented working for NYCTA and MABSOTA.

When TWU was advised that due to a budget shortfall, staff reductions were required that would affect bus operators employed by NYCTA and MADSTO and that at-risk NYCTA bus operators, as civil service employees, would be laid off in civil service seniority order, and at-risk MABSTOA bus operators, who were not civil service employees would be laid off in order of seniority in title, as provided for in the CBA, TWU filed a contract interpretation grievance on behalf of bus operators in the units it represented alleging that the announced method for laying off bus operators violated the surface consolidation agreement and as a remedy, asked for a determination that the bus operators for each be laid off pursuant to the consolidated seniority list used for picking job assignments.

Ultimately NYCTA initiated an Article 75 proceeding to permanently stay the arbitration on the ground that the relief sought was prohibited by the statutory requirements set out in the Civil Service Law for conducting layoffs of employees in the classified service. The Supreme Court granted the petition and permanently stayed arbitration of the grievance. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that “In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ‘there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'" and if there is no prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

NYCTA contended that the subject matter of the grievance was prohibited by law or public policy. In that regard, said the Appellate Division, a dispute is not arbitrable "if a court can conclude without engaging in any extended fact-finding or legal analysis' that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided' by arbitration."

The Appellate Division concluded that “assuming that the surface consolidation agreement affects how [NYCTA is] to conduct layoffs, the particular matter to be decided is prohibited, in an absolute sense, by Civil Service Law §80(1), which provides the sole manner by which an employer may lay off civil service employees in [the] competitive class,” citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 521).

Accordingly, layoffs within the title of bus operator in the NYCTA can only be made in inverse order of civil service seniority consistent with the mandates of Civil Service Law §80(1) and not by any other method such as the use of the consolidated seniority list. The Appellate Division concluded that "an arbitrator could not fashion a different remedy for this particular grievance that would not violate statutory requirements or public policy.”

This element – seniority for the purpose layoff – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045.*

In the Plattsburgh case the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

These were the critical events in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union’s grievance to arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

As the Court of Appeals said in County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." The same it true with respect to layoffs of personnel in the unclassified service.

* Source The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 © 2009 New York State Bar Association. Reprinted with permission.