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Challenging the abolishment of a position in the public service

By Harvey Randall, Esq.

Challenging the abolishment of a position in the public service
Matter of Civil Service Employees Association., Inc., Local 1000, AFSCME, AFL-CIO v Rockland County Bd. of Coop. Educ. Servs., 39 A.D.3d 641

In this appeal, the Civil Service Employees Association., Inc [CSEA] challenged the BOCES? abolishment of clinical psychologist position, a title in the classified service, and asked the court to reinstate Norman Stein, Robert Allan, and Jeffrey Goidel to their respective former positions of clinical psychologist with back pay, benefits, and seniority.[1]

The Appellate Division commence its review by noting that ?A public employer may abolish civil service positions for the purpose of economy or efficiency ?as long as the position is not abolished as a subterfuge to avoid statutory protection afforded civil servants before they are discharged,? citing Matter of Della Vecchia v Town of N. Hempstead, 207 AD2d 484.[2]

The party challenging the elimination of the position assumes the burden of proving that the employer did not act in good faith in abolishing the position. According to the Appellate Division, ?Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee.? The court, agreeing with Supreme Court?s conclusion, said that CSEA ?failed to raise a triable issue of fact as to whether the [BOCES] acted in bad faith in abolishing [classified] service positions of clinical psychologist and replacing those who were consequently terminated from employment with an increased number of school psychologists.?

While, said the court, some of the duties of clinical psychologist overlap with those of a school psychologist, the positions are not the ?same or similar,? as they have different certification requirements. Clinical psychologist is a title in the classified service and thus the Civil Service Law controls employment in those positions. In contrast, school psychologist positions are in the unclassified service and subject to the relevant provisions of the Education Law with respect to appointment to that title.

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[1] As to mechanics involved in abolishing a position in the public service, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee having rights triggered upon layoff from his or her position (1976 Opinions of the Attorney General 7). The means that the position or positions abolished must be physically eliminated.

[2] Civil Service Law Sections 80 through and including 82 address the abolishment of positions and the procedures to be followed and the rights of the employees so affected.

Full post as published by New York Public Personnel Law on January 25, 2008 (boomark / email).