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Where a School District Employee’s Job Is Eliminated Due to a Transfer of Function, the Procedure Mandated by Civil Service Law Section 70 Must Be Completed Before the Four-Month Statute of Limitations (for an Action Seeking Reinstatement) Starts Running

The Third Department determined the procedure mandated by Civil Service Law section 70 applied to a school district’s decision to cease its own data management services and purchase the services from BOCES.  Petitioner was employed by the district in data management.  The court held that the four-month statute of limitations for the employee’s action seeking reinstatement did not start until the Civil Service Law section 70 procedures had been followed:

Civil Service Law § 70 (2) applies “[u]pon the transfer of a function” from the District to BOCES (Civil Service Law § 70 [2] [first sentence][FN3]). The District’s decision to cease providing its own data management services and purchase such services from BOCES constituted the “transfer of a function” within the meaning of the statute … . The statute required the District, not less than 20 days before any such transfer, to certify to BOCES a list of the names and titles of all District employees who were “substantially engaged in the performance of the function to be transferred” and to publicly post that list along with a copy of the statute (Civil Service Law § 70 [2] [second sentence]). All District employees could then, before the effective date of such transfer, give written notice of protest to BOCES and the District of their “inclusion in or exclusion from such list” (Civil Service Law § 70 [2] [third sentence]). The head of BOCES would be required, within 10 days of receiving a protest, to review the protest, consult with the District and notify the employee of the determination regarding such protest (see Civil Service Law § 70 [2] [fourth sentence]). “Such determination shall be a final administrative determination” (Civil Service Law § 70 [2] [fifth sentence]). Respondents would then be required to determine which employees on the list were necessary to be transferred, by considering statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services (see Civil Service Law § 70 [2] [first and eighth sentences]…). Employees who were not transferred would be placed on a preferred hire list for similar positions at both the District and BOCES (see Civil Service Law § 70 [2] [eleventh sentence]).

* * * Ignoring the statutory procedure would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.

In transfer cases, the statute of limitations begins to run after the transferee agency rules against a protest to include an employee on the certified list or declines to transfer an employee who is on the list. Matter of Thornton v Saugerties Cent Sch Dist, 2014 NY Slip Op 07046, 3rd Dept 10-16-14

 

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