Opinion
862 CA 21-01171
12-23-2022
In the Matter of Margaret A. BURDICK, Petitioner-Appellant, v. BATH CENTRAL SCHOOL DISTRICT, Bath Central School District Board of Education and Joseph L. Rumsey, in his Official and Individual Capacity, Respondents-Respondents.
TABNER, RYAN & KENIRY, LLP, ALBANY (WILLIAM F. RYAN, JR., OF COUNSEL), FOR PETITIONER-APPELLANT. FERRARA FIORENZA P.C., EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
TABNER, RYAN & KENIRY, LLP, ALBANY (WILLIAM F. RYAN, JR., OF COUNSEL), FOR PETITIONER-APPELLANT.
FERRARA FIORENZA P.C., EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner, in her first cause of action, asserted pursuant to CPLR article 78, seeks to annul a determination abolishing her position as business administrator for respondent Bath Central School District (District) and outsourcing her role to nonparty Greater Southern Tier Board of Cooperative Educational Services (BOCES). Following the entry of an order granting in part respondents’ motion seeking, inter alia, to dismiss certain claims asserted in the first cause of action, the District and respondent Bath Central School District Board of Education (collectively, District respondents) moved for, in effect, summary judgment dismissing that cause of action in its entirety, and petitioner moved for, in effect, summary judgment on the remaining parts of the first cause of action. Supreme Court denied petitioner's motion and granted the District respondents’ motion. We affirm.
"It is well established that a public employer may abolish civil service positions for the purposes of economy or efficiency ..., but it may not act in bad faith in doing so" ( Matter of Arnold v. Erie County Med. Ctr. Corp. , 59 A.D.3d 1074, 1076, 873 N.Y.S.2d 789 [4th Dept. 2009], lv dismissed 12 N.Y.3d 838, 881 N.Y.S.2d 11, 908 N.E.2d 918 [2009] [internal quotation marks omitted]). Indeed, a public employer may not abolish positions "as a subterfuge to avoid the statutory protection afforded civil servants before they are discharged" ( id. at 1077, 873 N.Y.S.2d 789 [internal quotation marks omitted]; see Matter of Hartman v. Erie 1 BOCES Bd. of Educ. , 204 A.D.2d 1037, 1037, 614 N.Y.S.2d 90 [4th Dept. 1994] ). "A petitioner challenging the abolition of his or her position must establish that the employer in question acted in bad faith" ( Arnold , 59 A.D.3d at 1077, 873 N.Y.S.2d 789 ; see Matter of Aldazabal v. Carey , 44 N.Y.2d 787, 788, 406 N.Y.S.2d 32, 377 N.E.2d 476 [1978] ; Matter of Hritz-Seifts v. Town of Poughkeepsie , 22 A.D.3d 493, 493, 803 N.Y.S.2d 656 [2d Dept. 2005] ), and such a petitioner may do so by demonstrating that the position was not eliminated for bona fide reasons, that savings were not accomplished thereby, or that a replacement employee was hired (see Matter of Ifedigbo v. Buffalo Pub. Schs. , 125 A.D.3d 1447, 1450, 3 N.Y.S.3d 831 [4th Dept. 2015], lv denied 26 N.Y.3d 901, 2015 WL 5124045 [2015] ; Matter of Lally v. Johnson City Cent. Sch. Dist. , 105 A.D.3d 1129, 1131, 962 N.Y.S.2d 508 [3d Dept. 2013] ; Arnold , 59 A.D.3d at 1077, 873 N.Y.S.2d 789 ). Here, petitioner alleged that the District respondents acted arbitrarily and in bad faith solely on the ground that they failed to provide any support for the purported economic reasons that were given for abolishing her position.
We conclude that the District respondents met their initial burden on their motion (see Ifedigbo , 125 A.D.3d at 1448-1450, 3 N.Y.S.3d 831 ; see also Arnold , 59 A.D.3d at 1077, 873 N.Y.S.2d 789 ). Their submissions established, first, that there was an economic justification for the determination to abolish petitioner's position (see generally Aldazabal , 44 N.Y.2d at 788, 406 N.Y.S.2d 32, 377 N.E.2d 476 ; Ifedigbo , 125 A.D.3d at 1450, 3 N.Y.S.3d 831 ; Matter of Johnston v. Town of Evans , 125 A.D.2d 952, 953, 510 N.Y.S.2d 349 [4th Dept. 1986], lv dismissed 69 N.Y.2d 900, 514 N.Y.S.2d 1028, 507 N.E.2d 1091 [1987], lv denied 69 N.Y.2d 608, 514 N.Y.S.2d 1026, 507 N.E.2d 322 [1987], 70 N.Y.2d 612, 523 N.Y.S.2d 496, 518 N.E.2d 7 [1987] ). Specifically, the District respondents established that they could realize substantial savings by eliminating their in-house business administrator and outsourcing those services to BOCES, and that those financial reasons—not petitioner's job performance—served as the sole basis for the decision to abolish petitioner's position. Thus, the District respondents established a bona fide reason for the challenged determination (see Ifedigbo , 125 A.D.3d at 1450, 3 N.Y.S.3d 831 ).
Additionally, the District respondents’ submissions established that sufficient savings were accomplished to justify abolishing petitioner's position and outsourcing those services to BOCES (see Johnston , 125 A.D.2d at 953, 510 N.Y.S.2d 349 ). In particular, although the District respondents’ submissions established that they would incur some additional costs during the first school year following the abolition of petitioner's position—i.e., the costs associated with retaining an interim business administrator until the agreement with BOCES was finalized—they also established that the savings they realized in the two subsequent school years by outsourcing business administration services to BOCES, which included partial reimbursement from New York State, was well in excess of the costs that were initially incurred by abolishing petitioner's position. We note that petitioner did not allege that the District respondents acted in bad faith by hiring a replacement employee who performed substantially the same services as she did and, therefore, the District respondents were not required to address that issue to meet their initial burden on their motion.
In opposition to the District respondents’ motion, petitioner "failed to eliminate bona fide reasons for the elimination of [her] position, [or to] show that no savings were accomplished" by the determination to abolish her position ( Ifedigbo , 125 A.D.3d at 1450, 3 N.Y.S.3d 831 [internal quotation marks omitted]; see Matter of Mucci v. City of Binghamton , 245 A.D.2d 678, 679, 664 N.Y.S.2d 396 [3d Dept. 1997], appeal dismissed 91 N.Y.2d 921, 669 N.Y.S.2d 262, 692 N.E.2d 131 [1998], lv denied 92 N.Y.2d 802, 677 N.Y.S.2d 72, 699 N.E.2d 432 [1998] ). We therefore conclude that the court properly granted the District respondents’ motion and, for the same reasons, we conclude that the court properly denied petitioner's motion.
Petitioner's contentions that the District respondents acted in bad faith by hiring a replacement employee who performed substantially the same services as she did, and that the determination to abolish her position violated Education Law § 2510, are unpreserved for our review inasmuch as those contentions are raised for the first time on appeal (see Matter of Cameron Transp. Corp. v. New York State Dept. of Health , 197 A.D.3d 884, 887, 153 N.Y.S.3d 266 [4th Dept. 2021] ; Matter of Cornell v. Annucci , 173 A.D.3d 1760, 1761, 100 N.Y.S.3d 597 [4th Dept. 2019] ; see generally Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).