New York Law Review

Tag: Probationary Employment

  • Bethel v. New York City Community Development Agency, 86 N.Y.2d 10 (1995): Eligibility for Reinstatement After Failing Probation

    Bethel v. New York City Community Development Agency, 86 N.Y.2d 10 (1995)

    An employee who obtains a new civil service position through an open competitive examination, as opposed to a promotional examination or transfer, is not entitled to reinstatement to their former position if terminated during the probationary period for the new role.

    Summary

    Earlene Bethel, a permanent Contract Specialist, took an open competitive exam for a Staff Analyst position. After passing, she received a provisional appointment and a leave of absence from her permanent role. The leave was canceled, and she was later terminated during her probationary period as a Staff Analyst for insubordination. She sought reinstatement to her former Contract Specialist position, arguing her termination was a violation of Civil Service Law. The court held that because she obtained the Staff Analyst position via open competitive exam, not a promotion or transfer, she wasn’t entitled to reinstatement. The cancellation of her leave was also deemed permissible as she wasn’t entitled to a hearing.

    Facts

    Petitioner, Earlene Bethel, was a permanent Contract Specialist Level II with the New York City Community Development Agency (CDA) since May 1990.
    In June 1993, she took an open competitive examination for a Staff Analyst position posted by the CDA.
    In July 1994, after passing the exam, she received a provisional appointment as Staff Analyst and was granted a leave of absence from her Contract Specialist position.
    In April 1995, she was appointed to a probationary Staff Analyst position after the civil service list was certified.
    Her leave from her Contract Specialist position was canceled.
    In December 1995, she was terminated from her Staff Analyst position for insubordination during probation.

    Procedural History

    Petitioner commenced an Article 78 proceeding challenging the denial of her reinstatement to her former position.
    Supreme Court denied the petition and dismissed the proceeding.
    The Appellate Division reversed and granted the petition, remanding for a hearing, finding her leave cancellation an abuse of discretion.
    The Court of Appeals granted respondents’ motion for leave to appeal.

    Issue(s)

    Whether an employee who obtains a position through an open competitive examination, rather than a promotional examination or transfer, is entitled to reinstatement to their former permanent position if terminated during the probationary period for the new position.

    Holding

    No, because the provisions of the Civil Service Law that mandate holding open a prior position during a probationary period apply only to promotions and transfers, not to appointments made via open competitive examination. Additionally, the agency did not abuse its discretion in denying reinstatement.

    Court’s Reasoning

    The Court of Appeals emphasized the distinction between open competitive examinations and promotional examinations within the Civil Service Law (§§ 51, 52). The court stated, “Civil Service Law §§51 and 52 evidence the Legislature’s intention to create two types of examinations, serving distinct functions.” Since the petitioner obtained the Staff Analyst position through an open competitive exam, she wasn’t “promoted” within the meaning of the Civil Service Law.
    The Court cited Matter of Engoren v County of Nassau, which held that an employee appointed after an open competitive exam, absent evidence it was in lieu of a promotional one, wasn’t considered promoted. In this case, the Director of Classification confirmed that Contract Specialist and Staff Analyst are separate occupational groups with distinct lines of promotion. The court reasoned that if skills of a Contract Specialist were needed, a promotional exam would have been offered to Contract Specialists.
    The Court found that City Personnel Rule 6.2.7 allows for reinstatement eligibility but does not mandate it, thus giving CDA discretion. Since Civil Service Law doesn’t mandate agencies hold open positions for probationary employees absent a promotion or transfer, CDA didn’t abuse its discretion in denying reinstatement.
    Furthermore, by accepting the Staff Analyst position via open exam, the petitioner effectively resigned from her Contract Specialist role. Therefore, Civil Service Law § 75(1)(a), which provides hearing rights, was inapplicable. There was no abuse of discretion in CDA’s determination to deny petitioner’s reinstatement.

  • Feinerman v. Board of Cooperative Educational Services, 48 N.Y.2d 491 (1979): Enforceability of Teacher’s Waiver of Tenure Rights

    48 N.Y.2d 491 (1979)

    A prospective teacher may knowingly and freely waive the right to be appointed to a three-year probationary period in a tenure-bearing position, provided the waiver is not the product of coercive influences.

    Summary

    Muriel Feinerman was hired by the Board of Cooperative Educational Services (BOCES) for successive one-year contracts to teach in an adult education program that was federally funded. Each contract stated the position was non-tenure-bearing. Feinerman signed each contract. After several years, BOCES terminated her employment due to decreased enrollment. Feinerman sued, arguing her position was legally probationary and thus tenure-bearing, entitling her to seniority rights. The New York Court of Appeals held that Feinerman knowingly and voluntarily waived her right to a probationary, tenure-track position by signing the contracts, so her termination was lawful.

    Facts

    • In February 1974, Muriel Feinerman was hired by BOCES as a business subjects teacher in an adult education program funded by the federal government.
    • Her contract, which she signed, ran until June 30, 1974, specified a per diem wage, and stated, “There is no tenure with this position.”
    • Feinerman was reappointed for the 1974-1975 and 1975-1976 school years under similar terms.
    • In September 1975, she received a letter stating her salary would be per diem and no tenure would attach, which she signed to indicate acceptance.
    • A collective bargaining agreement in effect stated, “Tenure is not applicable in annually funded Day Time Adult Occupational Education projects.”
    • In June 1976, the superintendent informed Feinerman her position would be terminated on June 30, 1976, due to decreased enrollment.

    Procedural History

    • Feinerman filed an Article 78 proceeding seeking reinstatement.
    • Special Term dismissed the petition, finding she consented to a temporary, non-tenure position.
    • The Appellate Division modified the judgment, awarding her 60 days’ back pay, but denied reinstatement, reasoning she could have been terminated anyway during the probationary period.
    • Both Feinerman and BOCES appealed to the New York Court of Appeals.

    Issue(s)

    Whether a prospective teacher may waive the right to be appointed to a three-year probationary period in a tenure-bearing position.

    Holding

    Yes, because such waivers are valid if they are knowingly and freely made, and not the product of coercive influences.

    Court’s Reasoning

    • The Education Law (§ 3014, subd 1) requires teachers to be appointed for a probationary period of up to three years.
    • The court distinguished cases preventing the subversion of tenure statutes through “temporary” designations or delayed appointments, noting Feinerman expressly agreed to limited, non-tenure-bearing terms.
    • The court relied on Matter of Baer v Nyquist, stating it implicitly recognized that public policy doesn’t absolutely bar a teacher from waiving the right to a probationary period. The court emphasized that a waiver must be knowing and voluntary.
    • The court cited Matter of Abramovich v Board of Educ., which allowed a tenured teacher to waive statutory protections, reasoning that if a tenured teacher can waive rights, a probationary teacher’s waiver of a mere expectancy of tenure is even more acceptable.
    • The court emphasized that 3014 of the Education Law doesn’t bar teachers from waiving the three-year probationary period.
    • The court noted Feinerman willingly signed contracts stating, “There is no tenure with this position,” and didn’t allege coercion.
    • The court stated, “Only when it is clearly demonstrated that a teacher voluntarily, knowingly and openly waived the right to be appointed to a three-year probationary term in a tenure-bearing position and there is no evidence of coercion or duress should the public policy considerations embodied in the tenure statutes be said to yield to the terms of the employment agreement between the parties.”
    • Dissent: Judge Wachtler argued that teachers should not be required to waive tenure rights and that such waivers in original employment contracts are against public policy.

  • People ex rel. Loeser v. Board of Education, 224 N.Y. 474 (1918): Proper Procedure Required to Terminate Probationary Employment

    People ex rel. Loeser v. Board of Education, 224 N.Y. 474 (1918)

    A probationary employee is entitled to permanent employment if they are retained beyond their probationary period without proper notice of unsatisfactory performance from the appropriate appointing authority.

    Summary

    Loeser, a probationary clerk for the Board of Education, was effectively retained beyond his probationary period without proper notice of unsatisfactory performance. Although a committee recommended his termination, the Board of Education, which held the power of appointment and removal, did not ratify this decision until after the probationary period ended. The court held that because the Board’s ratification occurred after the probationary term, Loeser’s right to the position had vested, and he was entitled to reinstatement. The case underscores the importance of adhering to procedural requirements for terminating probationary employment and clarifies that retention without proper notice equates to a permanent appointment.

    Facts

    The Board of Education appointed Loeser as a clerk for a probationary period.
    The Board’s bylaws authorized a committee on supplies to appoint clerks, subject to Board confirmation.
    The bylaws also empowered the committee to conduct trials of clerks and report its conclusions to the Board.
    The committee recommended Loeser’s termination, but the Board did not ratify this decision until after his probationary period ended.
    Loeser was subsequently removed from his position.

    Procedural History

    Loeser sought reinstatement to his position.
    The Special Term ruled in favor of Loeser.
    The Appellate Division reversed the Special Term’s decision.
    The New York Court of Appeals reviewed the Appellate Division’s decision.

    Issue(s)

    Whether the probationary period for which the relator was appointed could be terminated under the rules of the municipal civil service commission only by notice from the appointing officer that his conduct or capacity was unsatisfactory to the officer, and for that reason he could not be retained in his position?

    Holding

    Yes, because the Board of Education’s bylaws required the Board, not merely a committee, to make the determination regarding termination of employment. The board of education by its by-laws jealously retained in its own hands the power of removal as well as the power of appointment. The notice necessary to terminate the relator’s employment at the end of the probationary period was not complete until ratified by the board of education.

    Court’s Reasoning

    The Court of Appeals emphasized that the Board of Education, not the committee on supplies, was the appointing officer with the power of removal. The court highlighted that the Board’s bylaws retained the power of removal and appointment. Retention in service without proper notice is equivalent to a permanent appointment. The court reasoned that the Board’s resolution to terminate Loeser after his probationary period expired was ineffective because his rights to the position had already vested.

    “The resolution that the board adopted on June 23, after the probationary period had expired, could not take effect retrospectively, because in the meantime the rights of the relator to the position had become fixed and determined.” The court cited the principle that ratification is ineffective when the rights of a third person have intervened between the act and its ratification, citing Pickering v. Lomax, 145 U. S. 310; Cook v. Tullis, 85 U. S. [18 Wall.] 332; Catholic F. M. Society v. Oussani, 215 N. Y. 1.

    This case is significant because it underscores the importance of strict adherence to procedural requirements in employment matters, particularly when dealing with probationary employees. It emphasizes that the power to terminate employment rests with the designated appointing authority, and any action taken by a subordinate body must be properly ratified before the probationary period expires. This case informs legal reasoning by emphasizing that rights vest when procedures aren’t followed, preventing retroactive action that would strip a person of those rights.