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Labor & Employment Law

: New York Public Personnel Law

In a layoff situation, only the name of an educator having ?faithful, competent service? in the position may be placed on a preferred list

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In a layoff situation, only the name of an educator having ?faithful, competent service? in the position may be placed on a preferred list
Matter of Einsohn v New York City Dept. of Educ., 2010 NY Slip Op 03839, decided on May 6, 2010, Appellate Division, First Department

Marc Einsohn served as Assistant Principal of Foreign Language at Francis Lewis High School in New York City.

Einsohn was served with disciplinary charges pursuant to Education Law з3020-a. While disciplinary charges were still pending he was excessed from his position as an assistant principal and he was assigned to a position at a regional operations center. Ultimately two of the disciplinary charges filed against him were sustained following a з3020-a disciplinary hearing.

When a vacancy for the position from which he was excessed was posted Einsohn requested tha the Department reinstate him to his former position as Assistant Principal.

The Department of Education rejected his request and Einsohn filed a CPLR Article 78 action seeking a court order directing his reinstatement to the position.

Supreme Court dismissed Einsohn?s petition and the Appellate Division concurred with the lower court?s action.

Citing Matter of Adlerstein v Board of Educ. of City of N.Y., 64 NY2d 90, the Appellate Division explained that as Einsohn had not been acquitted of all of the charges against him, he is not entitled to automatic reinstatement to his prior position.

In addition, said the court, the provision in the collective bargaining agreement relied upon by Einsohn applies only to an intermediate supervisor assigned to a school. As the record indicated that he was not an intermediate supervisor assigned to a school while the disciplinary charges were pending, he may not claim priority over others for the position at his former school.

Comment: According to the decision, Einsohn was ?excessed? from his position while still serving as an assistant principal, whereupon he was reassigned to another position. Presumably Einsohn's name was placed on the ?preferred list? for the title when he was excessed.

Presumably the Department removed Einsohn's name from the preferred list after he was found guilty of some of the charges preferred against him on the authority of Education Law зз2510(3)(a) and 3013(3)(a), which, in pertinent part, provide that "the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy ? provided the record of such person has been one of faithful, competent service in the office or position he [or she] has filled" [emphasis supplied].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03839.htm

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Full post as published by New York Public Personnel Law on May 07, 2010 (boomark / email).