Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings

Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings

As the Appellate noted in Brady v New York County Dist. Attorney's Off., 2018 NY Slip Op 00895, Appellate Division, First Department, a public officer may be entitled to claim absolute immunity as a defendant in a lawsuit under certain circumstances. This posting considers some common types of immunities available to officers, employees and others that may be claims in the course of litigation or administrative actions.

In an action brought pursuant to 42 USC §1983 and state law, Brady contended that Defendants had refused to investigate his allegations of judicial corruption. The failure, he argued, constituted gross negligence, willful misconduct, prima facie tort, negligent infliction of emotional distress, and a violation of the equal protection clause.  that under 42 USC § 1983 and state law.

The Court of Claims granted Defendants' motion to dismiss Claim No. 126268 as against the State and the Attorney General's Office, and Claim No. 126067 as against the State and the Attorney General's Office. The Appellate Division unanimously affirmed the Court of Claim's ruling.

The Appellate Division explained that "To the extent any of [those] defendants can be sued at all, they are protected by absolute prosecutorial immunity, which applies to the decision whether or not to initiate a prosecution as well to the investigative and administrative acts that are intertwined with [those decisions], such as the decision not to investigate a complaint.

Depending on the circumstances, public officers and employees may enjoy other forms of immunity including sovereign immunity qualified immunity, transaction or use immunity,

In Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159, the court addressed the doctrine of sovereign immunity, explaining that sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sover­eign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.

However, a governmental entity operating in a public capacity may loose its right to claim sovereign immunity in litigation if it is found that the underlying cause of action involved its acting in a proprietary capacity as the Court of Appeals indicated in Connolly v Long Is. Power Auth., Court of Appeals, 2018 NY Slip Op 01148. 

The issue before the Court of Appeals in Connolly was whether the defendants, the  Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO), and National Grid Electric Services, LLC (National Grid) were, collectively entitled to dismissal of plaintiffs' amended complaints on the rationale that the actions challenged were governmental and discretionary as a matter of law. 

The court rejected the defendants argument that assuming their actions were not discretionary, "plaintiffs' failure to allege a special duty is a fatal defect." Rather, the Court of Appeals ruled that because defendants had not met their threshold burden of demonstrating that the action was governmental in the context of its "pre-answer, pre-discovery CPLR §3211(a)(7) motions," it could not be concluded that plaintiffs' complaints fail to state causes of action as a matter of law.

The Court of Appeals also took note of the fact that LIPA was a public authority that was created by the legislature as a "corporate municipal instrumentality of the state . . . which shall be a body corporate and politic and a political subdivision of the state, exercising essential governmental and public powers," and authorized it to operate in LILCO's service area (Public Authorities Law §1020-c [1], [2]).

It then explained that it is "well settled that, "[d]espite the sovereign's own statutory surrender of common-law tort immunity for the misfeasance of its employees, governmental entities somewhat incongruously claim — and unquestionably continue to enjoy — a significant measure of immunity fashioned for their protection by the courts" (Haddock v City of New York, 75 NY2d 478, 484 [1990]). 

The doctrine of governmental function immunity "reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts," citing Valdez v City of New York, 18 NY3d 69. Additionally, said the Court of Appeals, "this immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury."

Because the issue in this CPLR §3211(a)(7) motion is whether plaintiffs' complaints have stated a viable claim, the first issue that to be considered "is whether the . . . entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. This is because if the action challenged in the litigation is governmental, the existence of a special duty is an element of the plaintiff's negligence cause of action.

As the court explained in (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, "[w]hen the liability of a governmental entity is at issue, it is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability."

Assuming the government entity was acting in a governmental capacity, the court observed that a plaintiff may nevertheless state a viable claim by alleging the existence of a special duty to the plaintiff, citing Turturro, 28 NY3d at 478. 

In Turturro v City of New York, 28 NY3d 469, the court explained that a government entity performing a purely proprietary, non-governmental role when its activities essentially substitute for or supplement traditionally private enterprises. In contrast, a government entity will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers.

If the plaintiff establishes the elements of the cause of action, including special duty, the government entity can avoid liability under the governmental function immunity defense by proving the challenged actions were discretionary in nature and that discretion was, in fact, exercised. However, because the governmental immunity defense protects government entities from liability only for discretionary actions taken during the performance of governmental functions, "[t]he . . . defense has no applicability where the [entity] has acted in a proprietary capacity, even if the acts of the [entity] may be characterized as discretionary."

Viewing plaintiffs' allegations in the light most favorable to plaintiffs, "as [the Court of Appeals] must given the procedural posture" of this action, plaintiffs' allegations concern the providing of electrical power by defendants, a service that traditionally has been provided by private entities in the State of New York., nor does LIPA dispute that the provision of electricity traditionally has been a private enterprise which, in the normal course of operations, would be a proprietary function.

Accordingly, the Connolly court concluded that it could not, as "a matter of law based only on the allegations in the amended complaints, as amplified," conclude that LIPA was acting in a governmental, rather than a proprietary, capacity when engaged in the conduct claimed to have caused plaintiffs' injuries.

The Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

However, in some situations such immunity dissolve in the face of  procedural omissions. For example, sovereign immunity may be waived as proved in Court of Claims Act Section 8. However, the State retains its immunity as to these claims in the event  claimants fail to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver is conditioned. In other words, the State's waiver of sovereign immunity pursuant to the Court of Claims Act is not absolute, but was condi­tioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.

In contrast to the Doctrine of Absolute Immunity, is the Doctrine of Qualified Immunity. In Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) the court addressed the issue of determining if a public officer may claim a qualified immunity from civil lawsuits. The Second Circuit said that two tests are involved in determining if a claim of qualified immunity is available to the officer or the employee.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [individual's] conduct violated a constitutional right. If the plaintiff’s cause of action survives this test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Citing Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.”

In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges. After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130]. The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

Compelling an employee to answer work-related questions may result in another form of immunity, typically referred to transactional or use immunity.

Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action. Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. In Corrigan the Court of Appeals explained that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.”

The high court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

However, an employee otherwise entitled to such immunity flowing from admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, in Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115 the courts indicated that such immunity would dissolve. In other words, transactional or use immunity does not permit the individual to lie.

Indeed, the U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees.

Further, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

There are a number of exceptions to an employee claiming transaction or use immunity. For example, in Greco v Board of Nursing Home Examiners, 91 AD2d 1108, the Appellate Division has held that an administrative disciplinary action may proceed notwithstanding the claimed immunity. A Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license.

The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

In addition, in Dacey v County of Dutchess, 121 AD2d 536 the Appellate Division ruled that statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing. In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work-related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

Other immunity-related issued may involve witnesses who may have participated in wrongdoing. Such witnesses are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure.

Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority. If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

In Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

In the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Further, the Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

The Eleventh Amendment of the United States Constitution provides another barrier to suing a State in federal court in that it provides that the judicial power of the United States "shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of any Foreign State." This means that the Eleventh Amendment generally bars federal courts from taking jurisdiction over lawsuits against state officials acting in their official capacities when the state is the real party at interest unless [1] the State has properly waived it right of immunity to being sued in federal court; [2] Congress has abrogated the state's immunity from suit through an unequivocal expression of its intent to do so through a valid exercise of its legislative power; or [3] where the plaintiff is seeking  prospective equitable relief for ongoing violations of federal law.

In a nutshell, Alden v Maine, US Supreme Court, 527 U.S. 706, explains that “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.

However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.

As noted in Mueller v Thompson, 858 F.Supp. 885, should a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].

In contrast, as the Second Circuit held in Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv, although a State’s removing a private lawsuit from State court to Federal court waives a State’s 11^thAmendment immunity, such removal may not affect its general claim to sovereign immunity.

Further, political subdivisions of a State are not "states" within the meaning of the 11th Amendment as the Second Circuit Court of Appeals held in Carrie Gorton v Bruce Gettel and Sullivan County BOCES, USCA, 2nd Circuit, Docket # 17-3190-cv.

The Second Circuit, noted that in earlier cases it had held that neither local school boards [Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232] nor local school districts in New York State were arms of the state [Fay v. S. Colonie Cent. School Dist., 802 F.2d 21] and thus not within the ambit of Eleventh Amendment immunity available to states explained that “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity [and] Eleventh Amendment immunity extends to “state agents and state instrumentalities that are, effectively, arms of a state.” In contrast, said the court, such immunity does not extend to suits against municipal corporations or other governmental entities that are not an arm of the state.

The court cited six factors determine whether an entity is an arm of the state:

(1) how the entity is referred to in its documents of origin;

(2) how the governing members of the entity are appointed;

(3) how the entity is funded;

(4) whether the entity’s function is traditionally one of local or state government;

(5) whether the state has a veto power over the entity’s actions; and

(6) whether the entity’s financial obligations are binding upon the state.”

Finding that Sullivan County BOCES is a locally run entity affiliated with local school districts, the Circuit Court concluded that its liability would not reflect adversely on New York State and thus did not satisfy at least one of these six criteria. The court rejected BOCES argument that it should enjoy immunity because the legislature has promulgated specific laws governing BOCES and because New York State treats BOCES differently than school districts. The Circuit Court opined that “This argument does not discharge [BOCES’] burden of showing that it is entitled to Eleventh Amendment immunity and thus the District Court was correct in denying its motion for summary judgment on the ground of Eleventh Amendment immunity."

Significantly, individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency. In Filarsky v. Delia, USSC, No. 10–1018, the petitioner appealed a decision by the 9th Circuit Court of appeals holding that an individual hired by a government agency to do its work is ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis. Here the court decided that a “private attorney,” was not a City employ­ee and thus was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.'"

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s rationale: Although not a public em­ployee, the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Further, citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

Selected "immunity" decisions

A government official performing a discretionary function is entitled to qualified immunity unless violative of an individual's statutory or constitutional rights.Cavanaugh v Doherty, Appellate Division, 243 A.D.2d 92

A two prong test is applied in determining if a public official is entitled to "qualified immunity" when he or she is sued. Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv

Availability of absolute or qualified privilege in judicial and quasi-judicial actions. Rosenberg v Metlife, Inc, 8 NY3d 359

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the alleged violation. Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law. Mueller v Thompson, CA7, 133 F.3d 1063

Employee must answer questions concerning work if granted “use immunity.” Tanico v. McGuire, 80 AD2d 297

Family Medical Leave Act and the Doctrine of Eleventh Amendment

Immunity.Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347

Grand jury witness may claim absolute immunity regarding his or her perjurious testimony with respect to any §1983 claim based on such perjurious testimony

Idrissa Adamou v Detective Edward J. Doyle [in his individual capacity], USCA 2nd Circuit, No. 17‐255 [Summary Order]

In order to prevail on a governmental function immunity defense, a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion. Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment. If these functions and duties are essentially clerical or routine, no immunity will attach. Valdez v City of New York, 18 NY3d 69.

Lewiston Golf lacks sovereign immunity because the Seneca Nation does not have legal title or ownership of the golf course being developed by Lewiston Golf. The issue is whether the property used by Lewiston Golf is owned by the tribe, and the record leaves no room for doubt that the owner of the golf course is Lewiston Golf, not the Seneca Nation. Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp.

Police chief held to have qualified immunity with respect to First Amendment violation allegations. Gubitosi v. Kapica, CA2, 154 F.3d 30

Refusal to answer questions during an administrative disciplinary investigation. Matter of Eck v County of Delaware, 36 AD3d 1180 

States do not have immunity from suit in the courts of other states. Nevada v Hall, 440 US 410.

Strong public policy against liability based on testimony in judicial proceedings holds that a witness should not subjected to potential liability for testimony uttered at solely at a judicial hearing. In contrast, where a plaintiff relies on evidence independent of the testimony at a judicial proceeding or hearing, the public officer or a public employee may not invoke the doctrine of absolute immunity. De Lourdes Torres v Jones, 26 NY3d 742.

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability. Taylor v Brentwood UFSD, CA2, 143 F.3d 679

The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award. In Re: The Arbitration Between Hawai'i State Teachers Association and the State of Hawai'i, Department of Education, Hawai'i Supreme Court, SCWC-11-0000065

The Port Authority was created in 1921 by a bi-state compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states' legislatures in 1950. The New York version of the legislation is found in §§7101 through 7112 of the Unconsolidated Laws; Unconsolidated Laws § 7101 says that consent to suit against the Port Authority is given by New York "[u]pon the concurrence of the state of New Jersey." §§7106 and 7107 state conditions to the consent. In the Matter of New York City Asbestos Litigation, 24 NY3d 275.

The U.S. Second Circuit Court's tests for sovereign immunity. Leitner v Westchester Community College, USCA, 2^nd Circuit, 14-1042-cv

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim. Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Where there is a rational process by which the jury could have concluded that the City's negligence was a proximate cause of the accident the doctrine of qualified immunity did not apply. Turturro v City of New York, 28 NY3d 469.

With respect to recoveries against "the state" as well as "any civil division thereof," to the extent that a statute allows recovery against the State, the statute waives the State's sovereign immunity. Such waivers are to be strictly construed and "waiver of immunity by inference being disfavored. Sharapata v Town of Islip, 56 NY2d 332.

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All About Provisional Employees in the Competitive Class of the Classified Service

All About Provisional Employees in the Competitive Class of the Classified Service

An individual may be appointed to a position in the Competitive Class in the Civil Service as a permanent employee,¹ a contingent permanent employee,² a temporary employee,³ as a provisional employee⁴or as a term appointee for a set period.⁵

This article will address a number of issues that may be encountered in considering employing individuals on a provisional basis such as the nomination and appointment process, the right of a provisional employee to permanent appointment, the termination of a provisional employee, collective bargaining considerations related to provisional appointments and similar matters.

An appointing authority⁶ may wish to make an appointment to a vacant position in the competitive class⁷for which there is no appropriate mandatory eligible list available.⁸ In such cases the appointing authority must nominate an individual for a non-competitive examination for appointment to the position as a provisional employee. The nomination for the provisional appointment is submitted to the responsible civil service agency – the State Department of Civil Service Department with respect to such an appointment to a position with the State as the employer and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service or the responsible personnel agency with respect to entities subject to the jurisdiction of a municipal civil service commission or personnel officer.

If the individual is certified as qualified after such non-competitive examination,⁹ he or she may be appointed provisionally to fill such vacancy until an appointment to the position can be made from an appropriate eligible list as required by law or an appropriate mandatory eligible list resulting from competitive examination.¹⁰

In any event, there are time limits on the duration of provisional appointments set out in law.¹¹ Although a provisional appointment is, as a matter of law, not to be for a period in excess of nine months, compliance with such a deadline has proven to be virtually impossible¹² and often long-term provisional appointments have proven to be the rule rather than the exception.¹³ This has resulted in court rulings indicating that a provisional appointment is a “stop-gap” method for filling a vacancy¹⁴ and the provisional appointee attains no right to be permanently appointed to the position by reason of having served in the position as a provisional appointee.¹⁵ This is true even if he or she should later become eligible for permanent appointment to the title from an appropriate eligible list.¹⁶

The following are among a number of long-term provisional employments that have resulted in litigation because the provisional incumbent claimed he or she had attained permanent status in the position.

The decisions illustrate the various terms, conditions and circumstances in which a provisional employee may obtain, or be denied, permanent status in the position upon his or her passing the appropriate examination.

In Haynes v. Chautauqua County¹⁷ the court held that being reachable for permanent appointment from the eligible list does not serve to give a long-term provisional employee any right to be selected for permanent appointment to the position.

Haynes, a provisional appointee, had been removed from the position about a month following the certification of the eligible list promulgated for the position and sued the appointing authority seeking reinstatement to the item as a permanent employee. The court held that passing the examination and being certified as eligible for permanent appointment does not give a provisional employee any special claim to being continued in the position. The court noted that §65.3¹⁸ of the Civil Service Law, providing for the termination of a provisional employee within two months of the date of the promulgation of the eligible list, controlled notwithstanding the fact that Haynes’ name was the first on the eligible list certified to the appointing authority.

In contrast, in LaSota v Green¹⁹ the Court of Appeals, reversing a lower court ruling, held that a long-term provisional employee did have a right to a permanent appointment to the position. The court explained that LaSota, a provisional for more than nine months and whose name was first on the eligible list, had obtained a permanent appointment by operation of law when he was retained in the position as a provisional following the establishment of the eligible list. 

The distinction between Haynes and LaSota: LaSota’s name was on an eligible list that was not a mandatory eligible list while in Haynes the list was a mandatory list as it consisted of more than three candidates interested in accepting appointment to the position.. 

Accordingly the LaSota court held that the provisions of Civil Service Law §65.4 rather than §65.3, controlled. 

The LaSota determination somewhat expands upon decision in Matter of Roulette.²⁰ In Roulett the court held that where a provisional employee, eligible for permanent appointment, was retained in the absence of a mandatory eligible list beyond the relevant probationary period for the position, he or she attained permanent appointment in the position by operation of law.

Becker v New York State Civil Service Commission.²¹ is a decision the provides yet another variation regarding the rights, if any, of a long-term provisional employee - the effect of retaining a provisional employee who is otherwise qualified for permanent appointment.

Earlier decisions such as Haynes had indicated that long-term provisional employees do not attain permanent appointment pursuant to §65.4 where there is a mandatory list and such persons may be removed from the position within 2 months of the date when the eligible list was established. In Becker the Court of Appeals held that the provisions of §65.4 of the Civil Service Law are to be strictly construed and apply only where there are fewer than three persons willing to accept the appointment left on the eligible list.

Becker had served as a provisional in a title since 1975. In 1981 she took and passed the competitive examination for the title but was reinstated to her lower grade permanent title after the eligible list had been promulgated. As she had been continued as a provisional employee for more than two months following the date on which the list was established, Becker claimed she had attained permanent status pursuant to §65.4 as she was one of the top three eligibles on the list.

Rejecting Becker’s argument, the court explained that a permanent appointment by operation of law pursuant to §65.4 results only when the provisional eligible for appointment is continued in the position after the eligible list is established and the list is not "mandatory" because there are fewer than three candidates interested in being appointed to the position. Although Becker had been retained in the position as a provisional employee for more than the two-month period set specified in §65.3,²² the appropriate eligible list certified for appointment to her position contains the names of three or more qualified individuals interested in being appointment to the item and thus her reliance on §65.4 was misplaced.

In any event, it is black letter law that a provisional appointment cannot ripen into a permanent appointment merely by the passage of time nor may a provisional employee claim a contractual right to continued employment in the position²³ unless he or she becomes qualified for permanent appointment and is selected for such an appointment or attains such status by operation of law.²⁴

Indeed, the courts have rejected efforts to override the merit and fitness provisions set out in Article V, §6 of the State Constitution through collective bargaining pursuant to the Taylor Law.²⁵

Article V, Section 6 of New York State’s Constitution mandates that appointments and promotions in the civil service of the State and its political subdivisions "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive."²⁶

An attempt to provide for converting a provisional appointment into a permanent appointment merely through the passage of time was considered in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit].²⁷

The relevant collective bargaining agreement [CBA] included the following provision:

"Section 6-1.0—Definition of Tenure - "Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.

"Section 6-1.1—Rights of Tenured Employees - "All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee's displacement by a candidate from an eligible list certified by the Civil Service Commission."

In effect, the CBA obviated the provisions of Article V, Section 6 and the provisions of the Civil Service Law adopted to effect “appointment and promotion” in the public service based on merit and fitness and, in effect, gave provisional and temporary employees subject to its provisions almost the same “permanent status” enjoyed by individuals appointed from a open-competitive or promotion eligible list upon their satisfactorily completion of their probationary period.

The Court of Appeals, noting that it “repeatedly held … that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy,” ruled that here CSEA’s grievance “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called "tenure" provisions of the CBA would violate the Civil Service Law and public policy.”

Further, noted the court, provisional appointments carry no expectation nor right of tenure. The court, citing Koso v Greene, 260 NY 491, said that provisional employees, while appointed to positions in the competitive class, are “exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]."

Again quoting from Koso, the Court of Appeals pointed out that “Such appointments ‘are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions’ and ‘[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.’”

The decision states that “CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months.” Accordingly, the City’s agreement providing superior rights to provisional employees holding positions beyond that statutory time period is a nullity.

The Court of Appeals conclusion: “the provisions under the CBA are unenforceable as a matter of law” as the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.

Provisional status was the critical element in another case, City of Plattsburgh v Local 788, 108 AD2d 1045 where in the issue concerned determining the right of an employee in a layoff situation.

The relevant 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 seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.²⁸

For example, assume that Employee A was provisionally appointed on January 1, and that 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 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.

When the City laid off employee A rather than employee B the Union grieved, contending that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, 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, holding that §80²⁹of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.³⁰

In some instances the Rules of a civil service commission may provide that: a provisional employee must be terminated after failing two examinations for the position. The court sustained the termination resulting from Steuben County Civil Service Commission invoking its “Two Examination Failure” Rule and refusing to approve the provisional employee’s continuation in the position.³¹

The Rule provided that no provisional employee who twice failed the test for the position would be given another provisional appointment unless the test failed to produce any qualified eligible or where the list was immediately exhausted. In this case the list consisted of four names, but one candidate refused appointment and a second withdrew his name from consideration.

The Commission successfully argued that further provisional appointment was not permitted because the examination did not fail to produce any qualified candidates and the list was not exhausted. Noting that a local civil service commission or personnel officer has the discretion to adopt such a Rule, the court suggested the employer, who “clearly was under no compulsion” to use the non-mandatory eligible list, would effect the purposes of the Constitution’s merit and fitness provision by appointing one of the two remaining eligibles on a provisional basis to the position or, in the alternative, the appointing authority could elect to make a permanent appointment from “two-name list.”

However, if a person whose name is on eligible list is appointed to the vacancy provisionally, applying the decision in Roulett,³² the individual selected would automatically attain permanent status if continued in service beyond the maximum probationary period otherwise required for the position.

The Roulette decision, however, would not apply in a “contingent permanent appointment”³³ situation as the court held in Matter of Snyder.³⁴

When the permanent incumbent of a position is placed on leave of absence for what is expected to be an extended period, the appointing authority often seeks to fill the position. Usually this results in a “temporary” appointment.³⁵ However, under State Civil Service Commission rules (similar rules have been promulgated by a number of municipal civil service commissions as well), if there is an appropriate eligible list available, the department or agency may elect to fill the position on a “contingent permanent” basis by selecting a person from the eligible list.

Such an appointment may prove to be of some importance as it provides the individual appointed on a contingent permanent basis with all of the rights of a permanent employee except the right to retain the position in the event the person on leave from the position returns to the position.

Snyder, had been “provisionally appointed” to a higher-level position, position A, when the permanent of position A was placed on leave of absence from the title upon his provisional appointment to a still higher-level position, position B. About two years later Snyder was reinstated to his permanent, lower grade, position. The permanent incumbent of Position A, however, continued to serve as a provisional employee in higher level position, position B.

Snyder sued, contending that he had become tenured in position A on a “contingent permanent” basis when he was continued in the title for more than nine months under color of §65.4 of the Civil Service Law.³⁶ He argued that he had attained such status automatically because he had been qualified to be appointed on a contingent permanent basis to Position A. As a result, he said, he could not be “demoted” except as a result of disciplinary action so long as the permanent incumbent of position A remained on leave of absence from the item.

However, the State Civil Service Commission, in interpreting its Rule concerning contingent permanent appointments, 4 NYCRR 4.11(a), had said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so. In effect, the Commission said that making a contingent permanent appointment requires an affirmative act on the part of the appointing authority to effect such an appointment.

The Appellate Division agreed with the Commission, noting that the regulation uses the permissive word “may.” The Court said “[o]nce it is established that (Snyder’s) status was solely as a provisional appointee³⁷ and, therefore governed entirely by Civil Service Law §65, the conclusion becomes inescapable that it could not ripen into that of permanent appointment absent full, literal compliance with all of the conditions for converting a provisional appointment to a permanent one under Civil Service Law §65.4.”

As §65.4 applies only where an examination fails to produce a list adequate to fill all positions then held on a provisional basis or where such a list is exhausted immediately following its establishment, the majority concluded that Snyder could not have attained permanent (or contingent permanent) status as there was no examination or list in his case.
.

Sometimes a permanent employee is promoted to a higher level position in his or her field of promotion as a provisional employee. Should the appointing authority elect to reinstate the individual to his or her lower grade position, is he or she entitled to notice and hearing? This was the issue in Singletarly v NYC Dept. of Homeless Services.³⁸

In the Singletarly decision the court set 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,³⁹ 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.

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 examination⁴⁰for 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.”⁴¹

However, as the court held in Lee v Albany-Schoharie-Schenectady-Saratoga Board. of Cooperative. Educational Services,⁴² should a permanent employee resign from his or her position in order to accept a provisional appointee in a different competitive class position, he or she retains no right to be reinstated to his or her former position.

Lee served in this new position as a provisional appointee for the next 12 years. After an audit of a number of BOCES position by the Albany County Civil Service Commission, BOCES was required to reclassify a number of positions, including the position in which Lee was then serving. Lee subsequently took the examination held for the position but she did not attain a passing score. The position was ultimately filled by BOCES “from a list of eligible persons who had passed the examination” and Lee was terminated from the position.

Lee filed a CPLR Article 78 petition seeking reinstatement to the title she had held as a provisional appointee with back pay or, in the alternative, reinstatement as a permanent appointee in her initial BOCES title, contending that her termination was arbitrary and capricious because there was a failure to comply with the certification requirements of Civil Service Law §22 and certain other civil service requirements in reclassifying her position. The Appellate Division dismissed Lee’s appeal, explaining that regardless of whether or not the reclassification was properly accomplished, Lee was not entitled to the relief she sought as it is undisputed that as a provisional employee she was subject to termination by BOCES "at any time without charges preferred, a statement of reasons given or a hearing held."

Selecting an individual for provisional appointment to a vacancy, however, does not require that the individual be eligible for the promotion examination or open-competitive examination for a vacant position.

In Turel v Delancy, 287 NY 15. the Court of Appeals said that the appointing authority is not required to select a person who is, or had previously been, on an eligible list for promotion to the position. In CSEA v Bobenhausen, 69 AD2d 983, the Appellate Division extended that option to include selecting someone for appointment to the vacancy “who is not qualified to take the promotion examination or open competitive examination for the position.”

Citing Koso v Greene, 260 N.Y. 491 and other decisions, the court explained that “nothing in subdivision 1 of §65 of the Civil Service Law that requires that a provisional appointee be fully qualified for permanent appointment or that he [or she] must be eligible to take the civil service test for the position before being provisionally appointed to it." The court noted that Bobenhausen, had been  approved for the appointment by the State Department of Civil Service after a noncompetitive examination, i.e., after a review of his qualifications, and its determination that he was qualified to serve provisionally complied with the statute, his failure to meet existing eligibility requirements for permanent appointment notwithstanding. A provisional appointment, said the Appellate Division, is a stopgap occasioned by necessity "and the appointee is exempt from civil service requirements and protection.”

Under certain circumstances an employee may become a provisional employee and ultimately a permanent employee “by operation of law.

§45 of the Civil Service Law treats with the status of employees of a private sector employer upon acquisition of private institution or enterprise by government and provides that the public entity may continue the employment of all officers or employees thereof deemed necessary, who shall have been in the employ of such private institution or enterprise for at least one year prior to such acquisition. The positions so held by such employees shall be in the non-competitive class, pending the classification or reclassification of such positions as hereinafter directed.

The state or municipal civil service commission having jurisdiction is to determine for which positions or class of positions competitive examinations are practicable and shall adopt rules classifying and reclassifying the positions. The then incumbents of such positions who are employed therein at the time of the acquisition of the private institution or enterprise and who were so employed for at least one year prior to such acquisition shall continue to hold their positions without further examination.

Another element to consider is the fact that the certification of the payroll by the civil service commission or department, or personnel officer is critical to lawfully paying an individual in the classified service. As the decision in Eldridge v Carmel Central School District. Board of Education⁴³ demonstrates, a civil service department and municipal commission has the authority to withhold certification "from an entire payroll or from any item or items therein."⁴⁴

The Appellate Division said that the allegations in the complaint were sufficient to establish that the School District “continued to pay and approve salary and compensation to the employee after the expiration of his provisional appointment and without proper certification of the payroll.

The Personnel Officer of Putnam County, who also serves as the Personnel Director for the Putnam County Personnel Department, sued the Carmel Central School District’s Board of Education to recover approximately $233,245 that were allegedly illegally paid by the School District to a provisional employee in the classified service that had been employed by the District without the certification required by the Civil Service Law §100.

Eldridge contended that the School District “illegally paid or authorized payment of salary or compensation to during the period February 10, 2006 through October 15, 2008, which payments Eldridge alleged were not properly certified as required by Civil Service Law §100(1)(a).

The Appellate Division rejected the School District’s argument notice that a person has been "promoted, transferred, assigned, reinstated or otherwise employed" in violation of the law was a condition precedent to an action to recover sums illegally paid under Civil Service Law §102(2). The Appellate Division also observed that “Contrary to the defendants' contention, an action commenced pursuant to Civil Service Law §102(2) is an action ‘to vindicate a public interest’ to which the notice of claim requirement in Education Law §3813(1) does not apply.”

  

As the court held in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit],⁴⁵ contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate controlling appointments in the public service.

The relevant collective bargaining agreement [CBA] included the following provision:

"Section 6-1.0—Definition of Tenure

"Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.

"Section 6-1.1—Rights of Tenured Employees

"All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee's displacement by a candidate from an eligible list certified by the Civil Service Commission."

In effect, the CBA obviated the provisions of Article V, Section 6 and the provisions of the Civil Service Law adopted to effect “appointment and promotion” in the public service based on merit and fitness⁴⁶ and, in effect, gave provisional and temporary employees subject to its provisions almost the same “permanent status” enjoyed by individuals appointed from a open-competitive or promotion eligible list upon their satisfactorily completion of their probationary period.

The City brought this action seeking to stay arbitration on public policy grounds. CSEA answered and cross-moved to compel arbitration.

Ultimately the Court of Appeals, noting that it “repeatedly held … that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy,” ruled that here CSEA’s grievance “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called "tenure" provisions of the CBA would violate the Civil Service Law and public policy.”

Further, noted the court, provisional appointments carry no expectation nor right of tenure. Citing Koso v Greene, 260 NY 491, the Court of Appeals explained that provisional employees, while appointed to positions in the competitive class, are “exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]."

Again quoting from Koso, the Court of Appeals pointed out that “Such appointments ‘are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions’ and ‘[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.’”

The decision states that “CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months.” Accordingly, the City’s agreement providing superior rights to provisional employees holding positions beyond that statutory time period is a nullity.

The Court of Appeals conclusion: “the provisions under the CBA are unenforceable as a matter of law” as the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator

One exception to the rule that a provisional employee may be terminated without notice and hearing is in a situation where the provisional employee has been terminated for “whistle blowing.”

One last observation concerning provisional employments.

In Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858, the court held that a provisional appointee covered by the State’s “Whistle Blower Law”

The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal that he alleged resulted from “whistle blowing.”

Civil Service Law §75-b, typically referred to as the “Whistle Blower Law,” defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”

According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Sisson’s superior]” and thus neither Sisson’s superior nor the department were entitled to summary judgment.
.

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¹  Civil Service Law §61.1

²  Civil Service Law §64.4

³  Generally Civil Service Law §64. A temporary appointment, which must be distinguished from a provisional appointment made pursuant to §65.1, may be made for a period not exceeding three months when the need for such service is important and urgent even in the face of an appropriate eligible list. A temporary appointment also may be made for a period exceeding three months under special circumstances set out in law. In contrast, the Civil Service Law permits provisional appointments to positions in the competitive class only when there is no eligible list available for filling a vacancy in the competitive class, and then only for a maximum period of nine months. Further, the statute requires that once a provisional employee has been in a position for one month, a civil service examination for the position must be scheduled and the provisional appointment to the position must end within two months of the date on which an appropriate eligible list is established.

⁴  Civil Service Law §65.1

⁵  See Civil Service Law §15.1(b)

⁶  Civil Service Law §2.9

⁷  Civil Service Law §44

⁸  The term “appropriate eligible list” includes a special militry list, a prefered list, a list resulting from a comptitive examination, a displacement list, a transfer list or similar lists.

⁹  The non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.

¹⁰  In the event an appropriate special military list, preferred list or a similar “mandatory” eligible list is promulgated while the position is being filled by a provisional appointee, if an individual on such a list is willing to accept appointment to the position, he or she must be appointed to the position or the position must revert to a “vacancy” and the provisional appointee terminated from the position. In Kerr v. Weisenberg, 65 AD2d 815 [1978], affd. 49 NY2d 870, the cour held that rights of an individual on a preferred elibible list are superior to those of a provisional employee.

¹¹  Civl Service Law §64.2.

¹²  §15.1 of the Civil Service Law [Laws of 1909, Chapter 15] provided that the duration of a provisional appointment was not to exceed six months.

               

¹³  Legislation has been adopted seeking to control “excess provisional appointments in the City of New York.” See Civil Service Law §65.59(c). [N.B. This provision is repealed effective December 31, 2014]

¹⁴  Application of Gaiser, 30 Misc2d 619 [1961], affd. 15 AD2d 793.

               

¹⁵  Russell v Hodges, 470 F2d 212, USCA, 2^nd Circuit, [1972]

¹⁶  Indeed, a provisional appointee may be terminated "at any time without charges preferred, a statement of reasons given or a hearing held" so long as such termination is not for an unlawful reason.

¹⁷  Haynes v. Chautauqua County, 55 NY2d 814

¹⁸  Civil Service Law §65.3, subject to certain considerations not here relevant, provides that “A provisional appointment to any position shall be terminated within two months following the establishment

¹⁹  LaSota v. Green, 53 NY2d 491

²⁰  40 AD2d 611

²¹  Becker v New York State Civil Service Commission, 61 NY2d 252 [1984].

²²  See Civil Service Law 65.2

²³  Russel v Hodges, 470 F2d 212, [1972, CA2]; Rohl v Jeacock, 289 AD 208; [1940], affd. 284 NY 660..

               

²⁴  Civil Service Law §65.4.

               

²⁵  Civil Service Law Article 14.

²⁶  The concept of selection based on merit and fitness is also applied in situations where it has been determined that a competitive examination is not "practicable." Section 42.1 of the Civil Service Law mandates that appointment to a classified civil service position [other than to positions in the exempt and labor classes] shall be made only "after such non-competitive examination as is prescribed by the State Civil Service Department or municipal commission having jurisdiction."

²⁷  8 NY3d 465

²⁸  §§80 and 80-a

²⁹  And, presumably, §80-a.

³⁰  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.

³¹  Matter of the Steuben County Civil Service Commission, 113 Misc 2d 570

³²  Roulett v Hempstead Civil Service Commission, 40 AD2d 611

³³  Civil Service Law §64.4

³⁴  Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981

³⁵  See, generally, §64 of the Civil Service Law

³⁶  The Department of Civil Service conceded that it did not expect to ever hold a competitive examination for position A. Reading Civil Servce Law §§52.6 and 65.4 together, Snyder contended that he was now tenured in position A on a contingent permanent basis.

³⁷  Actually it could be argued that Snyder served as a “temporary employee” rather than a provisional appointee as a provisional appointment may be made only in the event the position is y vacant [see Civil Service Law Section 65.1]. In Synder’s case the position in question was incmbered by a permanent employee on leave from the title to serve in a higher grade position as a provisional employee. 4 NYCRR 4.10 provides, in pertinent part, that “When a permanent competitive class employee is given a temporary provisional or trainee appointment or promotion to another competitive class position in the same department or agency … he [or she] shall be deemed to be on leave of absence from his [or her] permanent position for the period of his [or her] service under such temporary, provisional or trainee appointment or promotion.

³⁸  Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

³⁹  See Roulett v Hempstead Civil Service Commission, 40 AD2d 611

⁴⁰  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.

⁴¹  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. Also, in Sisson v Lech, 266 AD2d 858, the Appellate Division held that a provisional employee is protected by the Whistle Blower Law, Civil Service Law §75-b.

⁴²  Matter of Lee v Albany-Schoharie-Schenectady-Saratoga Bd. of Coop. Educ. Servs., 2010 NY Slip Op 00629, Decided January 28, 2010, Appellate Division, Third Department

⁴³  Eldridge v Carmel Cent. School Dist. Bd. of Educ., 82 AD3d 1147

⁴⁴  See Civil Service Law §100[1][a]

⁴⁵  Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit], 8 NY3d 465,

⁴⁶  The concept of selection based on merit and fitness is also applied in situations where it has been determined that a competitive examination is not "practicable." Section 42.1 of the Civil Service Law mandates that appointment to a classified civil service position [other than to positions in the exempt and labor classes] shall be made only "after such non-competitive examination as is prescribed by the State Civil Service Department or municipal commission having jurisdiction."