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Transfer and reassignment

Transfer and reassignment
Nicosia v Roets, App. Div., 4th Dept. 294 A.D.2d 855

The Nicosia decision provides an opportunity to explore the difference between a transfer and a reassignment, two different types personnel actions that are frequently confused.

A transfer involves the movement of an individual from a position under the jurisdiction of one appointing authority to a position having the same title under the jurisdiction of a different appointing authority. In a transfer situation, approval by both appointing authori­ties and the employee's consent is required.

Typically an employee who is transferred is required to serve a probationary period in the new position while no such probationary period is required in a reassignment situa­tion. 4 NYCRR 1.2(b)(1) defines the term "transfer" with respect to the State as an employer.

Section 70.1 of the Civil Service Law authorizes transfers with the consent of the em­ployee, while CSL Section 70.2 deals with situations involving the transfer of staff "upon the transfer of functions." In addition, CSL Section 70.4 authorizes an employee's "trans­fer and change of title" under certain conditions. Further, CSL Section 70.6 provides for the involuntary transfer of employees of the City of New York where a collective bar­gaining agreement so provides.

A reassignment is defined in the State Civil Service Commission's Rules for the Classi­fied Service, 4 NYCRR 1.2. (b)(2) as a personnel action involving the movement of an employee from one position to another position having the same title under the jurisdic­tion of the same appointing authority. The consent of the employee is not required in a reassignment situation.

Many municipal commissions have adopted similar rules concerning the transfer or reassignment of municipal workers.

Karen A. Nicosia objected to her being "transferred" from her employment as a pharma­cist at one psychiatric center to a pharmacist position at a different psychiatric center without her consent. Nicosia sued, seeking a court order directing that she not be so trans­ferred without her personal approval to this change in employment.

The Appellate Division, Fourth Department agreed with a lower court's ruling granting Nicosia's petition.

The court said that:

It is undisputed that the two respondent psychiatric centers at issue constitute separate appointing authorities under Mental Hygiene Law Sections 1.03(6) and Section 7.17(b), and thus the assignment of [Nicosia] to work numerous days at respondent Western New York Children's Psychiatric Center instead of at her usual position at respondent Buffalo Psychiatric Center constituted a transfer within the meaning of 4 NYCRR 1.2(b)(1).

Accordingly, this change was subject to the provisions of Section 70.1. Absent the cons­ent of both appointing authorities, and Nicosia, Nicosia could not be required to serve at another facility under the jurisdiction of a different appointing authority.

Presumably the "consent" of the Department of Civil Service mentioned by the Appellate Division in its ruling refers to the general authority of the Department to certify the lawfulness of all personnel transactions as neither the Civil Service Law nor the Rules of the State Commission specifically require the approval of a "transfer" by the Depart­ment.

Is there any federal issue in situations involving transfers and reassignments? It appears that there are limited property rights that have been recognized by federal courts with respect to such types of personnel actions.

In Maples v Martin, 858 F2d 1546, the court said that transfers and reassignments have not been held to implicate a property interest where no loss of pay or rank occurs. Thus a challenge to a transfer or reassignment permitted under the Civil Service Law would probably not survive in federal court unless the individual could show that he or she suffered a loss of salary or was placed in a position allocated to a lower salary grade as a result of the change.

Full post as published by New York Public Personnel Law on June 06, 2008 (boomark / email).