This is a proceeding brought pursuant to CPLR Article 78 which seeks to annul the removal of petitioner from the position of Principal Attorney at the New York State Division of Criminal Justice Services (DCJS). Petitioner also seeks a declaratory judgment under CPLR 3001 that her removal was unconstitutional and contrary to law. In addition, petitioner has added pendent federal claims for relief under 42 USC §§ 1983 and 1988.

Background:

In 1994 petitioner began working as an attorney at DCJS with a provisional appointment to the position of Prosecution and Defense Specialist. In 1997 she was promoted to Senior Attorney, a competitive class position under the Civil Service Law. In 2004 petitioner was again promoted, this time to Associate Attorney, another competitive class position. In September of 2005 petitioner accepted appointment to the exempt class position of Chief Counsel to the Director and Deputy Commissioner and Counsel to DCJS. Since this appointment provided no civil service protections to petitioner, she sought and received a discretionary leave of absence from her prior protected position as Associate Attorney pursuant to 4 NYCRR § 5.2.

In late October of 2006 DCJS convinced the Division of Budget (DOB) of the Department of Civil Service to approve the transfer of a vacant Principal Attorney position from the Office of Real Property Services (ORPS) to DCJS. Apparently DOB was unaware that on two prior occasions, once in 2003 and again as recently as March of 2006, applications by DCJS to the Division of Classification and Compensation (DCC) in the Department of Civil Service for the creation of such a position had been denied after detailed inquiries into the internal structure and staffing needs of DCJS. Within days of DOB's approval of the transfer, petitioner was nominated to this Principal Attorney position.^[FN1]

Petitioner's nomination was approved by the Staffing Services Division (SSD) of the Department of Civil Service. As with DOB, it appears that SSD was unaware of DCC's prior denials of DCJS's requests for the creation of the Principal Attorney position. In any event, petitioner was appointed to the position on November 8, 2006 (effective November 7, 2006 [Election Day]). Two days later, after learning of the transfer between ORPS and DCJS, DCC "earmarked" the position for internal auditing.^[FN2] [*2]

Though appointed to the position of Principal Attorney, petitioner continued in her position as Chief Counsel to the Director and Deputy Commissioner and Counsel to DCJS. In fact, she never served for a single day as a Principal Attorney. Nonetheless, on December 5, 2006 petitioner received a letter from the Assistant Director of Personnel at DCJS confirming her appointment to the Principal Attorney position and informing her, consistent with 4 NYCRR § 4.5(b)(2), that she would be subject to a probationary period of from twelve to fifty-two weeks from the date of appointment. On December 21, 2006 petitioner received a memo from the Executive Deputy Director of DCJS which informed her that due to her "outstanding performance" her probationary period as Principal Attorney would be limited to twelve weeks.^[FN3]

DCC eventually became aware of the sequence of events leading up to petitioner's appointment to a position that DCC had on two prior occasions determined was not appropriate for DCJS. The Director of DCC reported these findings to the Commissioner of the Department of Civil Service, who in turn asked DOB to rescind the transfer of the Principal Attorney position from ORPS to DCJS. DOB complied with this request, voiding the transfer ab initio. This action effectively terminated petitioner's appointment to the Principal Attorney position. This litigation ensued.

The "Hold"

Under the Rules and Regulations of the Department of Civil Service permanent employees enjoy the right to leaves of absence under certain conditions. For example, a permanent employee who is promoted or transferred to a position that requires successful completion of a probationary term has a mandatory right to a leave of absence from his or her previous permanent position (4 NYCRR § 4.5[e]). In effect, this right confers a mutual benefit upon the employee and upon the State: the employee is free to pursue advancement within the civil service without fear of being left unemployed in the event the new position is not a good fit, while the State is better served because qualified employees whose talents can be utilized to the fullest will more willingly accept the challenges of career advancement without the risk of jeopardizing their and their families' financial security. This right of return created by the mandatory leave of absence is called, in civil service parlance, a "hold."^[FN4]

The concept of the "hold" can be expanded even beyond that defined by § 4.5(e). 4 NYCRR § 5.2 allows for discretionary leaves of absence for any permanent employee. Thus, a permanent employee (e.g. petitioner as an Associate Attorney) could request a leave of absence in order to accept an appointment to a position that offered no civil [*3]service tenure. As in petitioner's case, this can provide a benefit to both the employee and the State: an experienced, permanent member of the civil service need not fear loss of tenure rights in order to accept appointment to an unprotected managerial position. The State's interests are served because the most talented employees with tenure can be called upon to serve in higher unprotected offices without those employees having to abandon the security of their careers in the protected class of the civil service, while the employee is free to pursue personal advancement while enjoying a "hold" on a tenured position.

In the present case, while on a discretionary leave of absence from her permanent position as Associate Attorney, petitioner accepted an appointment to the higher grade Principal Attorney position and then, on the very day of the appointment, received a discretionary leave of absence from that new position. The end result is a "leap-frog" promotion to a position in which petitioner has never served and yet to which she purportedly enjoys a right to "return" after leaving her current exempt position. While this might seem an available stratagem for personal advancement, as set forth below, petitioner's purported hold violates a number of provisions of the Civil Service Law and Regulations and is therefore invalid.

The Limits of the "Hold"

As noted above, a "hold" such as the one in issue here results from a discretionary leave of absence from a permanent civil service position. 4 NYCRR § 5.2(b) provides, in pertinent part, "A permanent employee . . . may, in the discretion of the appointing authority, be granted a leave of absence" (emphasis added). The language of this regulation thus expressly limits discretionary leaves of absence to permanent employees. Permanent employees are those who have successfully completed their terms of probation: 4 NYCRR § 4.5 provides, in pertinent part, "It is the intent of the Civil Service Commission that permanent appointments, promotions or transfers shall require . . . satisfactory completion of a probationary term . . . ." A leave of absence taken on the day of appointment would, of course, be taken by a probationary, not a permanent, employee. Such a leave is not authorized by the regulations.

Moreover, any period of absence, whether authorized or unauthorized, automatically extends the probationary term by the period of that absence (4 NYCRR § 4.5[g]). At the discretion of the appointing authority, an absent probationer may be given no more than twenty days' credit for time served on probation for any period of absence (id.). Thus, regardless of how long a time may have elapsed from the date of appointment to the higher position, the absent employee cannot complete his or her probationary period in absentia, cannot become "permanent" in the position and thus, without a vested right, cannot enjoy a "hold" on that position. The single exception to this rule is laid out in 4 NYCRR § 4.5(i), which allows for discretionary credit to be applied toward a period of probation when the probationer has left his or her position in order to accept either a temporary or a provisional appointment to a higher position. Temporary and provisional appointments are defined in Civil Service Law §§ 64 and 65 respectively, and do not [*4]include appointments (as in the present case) to the exempt class.

Petitioner's Purported "Hold"

Applying the analysis above to the present case, it is clear that petitioner's "hold" on the position of Principal Attorney is illusory at best. Her leave of absence taken while on probation violates Civil Service Regulations and her probationary period could not have been completed prior to the effective termination of her position by DOB's rescission of the transfer of that position. Yet there are further considerations to be addressed as well.

Petitioner contends that her probationary period ended as of January 15, 2007 and that, as a result, she has a vested property right in the permanent position of Principal Attorney. The evidence she provides for this claim is the December 21, 2006 letter of the Executive Deputy Commissioner of DCJS which purports to shorten her period of probation prospectively. This letter could not, however, have accomplished this intended goal.

4 NYCRR § 4.5(b)(2) provides, in pertinent part, that "every promotion to a position in grade 14 and above shall be subject to a probationary term of not less than 12 weeks nor more than 52 weeks." 4 NYCRR § 4.5(b)(5)(i) provides, in pertinent part, "An appointment, promotion or transfer shall become permanent upon the retention of the probationer after his or her completion of the maximum period of service or upon earlier written notice following completion of the minimum period that his or her probationary term is successfully completed . . ." (emphasis added). The December 21, 2006 letter (written a six weeks after petitioner's appointment on November 7, 2006) is not written notice following the completion of the minimum twelve-week period of probation. As a result, petitioner's period of probation did not end on January 15, 2007 (the erroneously calculated twelve-week date), nor did it end on January 31, 2007 (the end of the twelfth week from November 7, 2006). Rather, in the absence of written notice of successful completion of probation after January 31, 2007, petitioner would have remained on probation until November 7, 2007.^[FN5] Thus, had petitioner not been effectively terminated by DOB's rescission of the transfer of the Principal Attorney position, she would even now still be a probationer with no vested property rights in that position.

The Effect of Petitioner's Status as Probationer

The provisions of Civil Service Law § 75 regarding the rights of permanent employees to notice and a hearing prior to termination has been held to confer upon those employees a protected property interest in their positions (see e.g. Dworkin v New York State Dept. of Environmental Conservation, 229 AD2d 42, 47 [3d Dept 1997] [citation omitted]). This interest does not vest, however, until the completion of the applicable probationary period (id.). This stems from the principle that when a governmental unit [*5]has discretion over the bestowal or continuation of a benefit, no property interest exists (id., citing Matter of Niagara Mohawk Power Corp. v New York State Dept. of Transportation, 224 AD2d 767, 768 [3d Dept 1996]). At most, petitioner was merely a probationary Principal Attorney at the time DOB rescinded the transfer of the position from ORPS. Thus, petitioner had no protected property interest in the position.

Furthermore, petitioner's status as a probationary employee does not confer upon her any due process right to challenge the circumstances surrounding the termination of her position (Cleary v New York State Dept. of Education, 239 AD2d 649 [3d Dept 1997]). Judicial review of a determination to discharge a probationary employee is limited to the question of whether the termination of employment was made in bad faith (Johnson v Katz, 68 NY2d 649, 650 [1986]). Here, the record establishes without contradiction that DCJS had twice sought to create a Principal Attorney position and had twice been denied this request by DCC. It is also uncontroverted that DCJS, after these two rejections by DCC, nonetheless orchestrated the transfer of a Principal Attorney position from ORPS through DOB, without informing DOB that DCC, another division of the Department of Civil Service, had previously determined that such a position was not appropriate for DCJS. It is also uncontested that the Commissioner of Civil Service requested that DOB rescind the transfer after all of the circumstances surrounding the transfer had come to light. In short, despite petitioner's contention that the rescission of the transfer was the result of a personal vendetta against her, the record supports a determination that the action complained of was taken in good faith.

Conclusion

At most, petitioner was a probationary Principal Attorney at the time the transfer of that position was rescinded by DOB. Without a protected property interest in that position, petitioner had no due process rights surrounding her termination as Principal Attorney. For this same reason, petitioner's probationary status precludes her ability to advance federal claims under 42 USC §§ 1983 and 1988 (Cf. Kover v Westchester Community College, 116 AD2d 648 [2d Dept 1986]). Review of the determination to rescind the transfer of the Principal Attorney position from ORPS to DCJS is limited to the question of whether the action was taken in good faith. Review of the record provides ample evidence that indeed it was.

Accordingly, it is

ORDERED, ADJUDGED AND DECREED that the instant petition is dismissed in all respects.

This constitutes the Decision, Order and Judgment of the Court. All papers including this Decision and Order are returned to respondents' attorney. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is [*6]not relieved from the applicable provisions of this rule with regard to filing, entry and notice of entry.

Dated:September, 2007

Troy, New York

______________________________________

Henry F. Zwack

Acting Supreme Court Justice