What are my competitive civil service rights when a title is eliminated but not the job?

I am a NY competitive civil service p/t employee of a school district for three years.I been waiting for a f/t position but was overlooked a couple of times. An employee left and instead of offering me a F/T position a new provisional full time position became available for the same job with a different title. s An exam was offered which I took to be on a list. My boss called me into his office and told me they are eliminating my title which means they are eliminating me. They will be hiring two new employees off of another list for the same job description. I am on that list. What are my rights? Thanks.

1 answer  |  asked Jun 4, 2016 05:11 AM [EST]  |  applies to New York

Answers (1)

V Jonas Urba
New York school districts are generally governed by school boards. These boards usually accept recommendations made by the school superintendent in conjunction with the assistant superintendent for human resources and sometimes others.

The school boards usually control the elimination and creation of positions. They often site budgetary concerns in order to justify their decisions. In today's economy saving money is often a concern and creating part-time or provisional positions or even contract jobs are common ways to do so. Such positions do not commit boards to long-term employment of anyone and give them the flexibility to cut positions whenever unexpected enrollment figures, tax revenues, costs, or expenses necessitate doing so.

Anyone who believes that a school board is acting unlawfully bears the burden of proving such unlawful action. This is challenging since no single individual (at least publicly) controls what any board does.

The competitive civil service exam is one of the shields which school boards often use to justify what you described in your scenario. If you were a member of a union have you asked your union for advice or help? If not, here's what one NY school district posts regarding provisional employees. It should but does not necessarily represent how your school board will treat the position you hope to secure.

"A provisional appointment is a temporary appointment to a competitive class position (a position that requires a civil service test) when there is no existing civil service list or the list contains fewer than three candidates willing to accept the position being offered. In order to become permanent, the provisionally appointed employee must take the next examination for the position. The permanent appointment to the position will be
made among the three highest scoring candidates who indicate their willingness to accept the position. The provisional candidate must be among the top three interested candidates to be appointed permanent."

As you can see, there is no guarantee that even if you are among the highest three interested candidates that you will be appointed to any position. Is there politics involved? Maybe. How would you prove an unlawful hiring determination when a majority of the school board usually, if not always, votes on any decision? If the superintendent were biased or made an unlawful selection, the school board's legal counsel should, or most likely would, recognize such a recommendation and advise the board accordingly.

I think your concern was whether you could prevent the school board from eliminating your position. That would depend on what specific, unlawful, arbitrary, capricious, tortious, or discriminatory action was taken and the evidence you had to prove it. Such an analysis would almost certainly require you to consult with a labor and employment attorney because all of your facts, taken together, would need to support some plausible discriminatory theory or unlawful action and your theory for recovery would need to be "plausible," which is almost certain to require a legal analysis. Good luck. Seek counsel.

posted by V Jonas Urba  |  Jun 4, 2016 10:39 AM [EST]

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