Vaccaro v. Board of Ed. of City of New York

• Decision Date: 10 July 1967
• Citation: 54 Misc.2d 206,282 N.Y.S.2d 881
• Parties: Victor VACCARO, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Defendant.
• Court: New York City Court

Page 881

282 N.Y.S.2d 881

54 Misc.2d 206

Victor VACCARO, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Defendant.

Civil Court of the City of New York, Queens County.

July 10, 1967.

Victor Vaccaro, pro se.

J. Lee Rankin, Corp. Counsel, City of New York, John J. Loflin, Jr., Isidore Heyman, New York City, Charles D. Maurer, of counsel, for defendant.

LEONARD L. FINZ, Judge.

In this action plaintiff seeks to recover for vacation pay following his termination as a provisional employee of the City of New York. There is no dispute that plaintiff, as a provisional employee had accumulated a certain amount of vacation pay (although the specific amount is disputed). The major issue is whether the plaintiff, as a provisional employee of the City of New York lost his rights to accrued vacation pay upon termination of his employment.

The plaintiff was originally employed as a provisional employee in the engineering department of the Board of Education apparently under the authority of Section 65 of the Civil Service Law. He remained as a provisional for approximately 8 1/2 years, having received interim appointments under the controlling statutes. On January 28, 1966 plaintiff was advised by the personnel officer in charge that an eligible list had been certified and that plaintiff's employment was in jeopardy. Subsequently on February 1, 1966 notice was mailed to plaintiff that his employment would terminate effective February 4, 1966. Plaintiff continued to report to work up to the last day of his employment, at which time it is claimed that he had accumulated certain vacation pay which is the subject of this action. The defendant offered a series of records and documents, including the monthly time reports indicating that the vacation time, if due to plaintiff, would aggregate less than that which was being claimed by the plaintiff, which documents were admitted into evidence as Defendant's Exhibit 'A'.

The major issue, aside from the variance in the amount of vacation time actually accrued, is whether the plaintiff as a provisional employee of the City of New York lost his rights to accrued vacation pay upon termination of his employment. There appearing to be no prior decisions that are controlling, the issue to that extent is novel and of first impression.

Civil Service Law, Section 65, reads in part as follows:

'1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, He may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination * * *' (emphasis supplied).

Rule 5.17 of the Rules and Regulations for Administrative Employees of the Board of Education of the City of New York provides as follows:

'Provisional and temporary employees shall have the same annual leave benefits as regular employees, Unless certification of eligible list prevents, except that they may not be permitted to use annual leave allowances for other than religious holidays until they have completed four months of service.' (Emphasis supplied.)

Defendant asserts that plaintiff was appointed merely to fill a vacancy until a selection and appointment could be made for such position after a competitive examination; that thereupon plaintiff's employment in that position would be terminated. McCann v. Kern, 262 App.Div. 109, 28 N.Y.S.2d 321 (1st Dept., 1941) aff'd 287 N.Y. 581, 38 N.E.2d 383 (1941). Defendant contends further that plaintiff's right to payment for accrued vacation is governed by Rule 5.17 of the Rules and Regulations for Administrative Employees of the Board of Education which reads in part that:

'Provisional and temporary employees shall have the same annual leave benefits as regular employees, Unless certification of eligible list prevents * * *' (emphasis supplied).

The defendant argues that certification of an eligible list prevented the Board from granting plaintiff his accrued vacation pay in that plaintiff's salary line was taken over by the new employee and that there was no other line or authorization to predicate payment by the Board to him.

To pay plaintiff his earned vacation pay after the relationship of employee and employer has terminated, the defendant argues, would constitute a gift of public funds and would violate Article 8 Section 1, of the New York State Constitution. Mahon v. Board of Education, 171 N.Y. 263, 63 N.E. 1107 (1902) is cited as authority for this contention.

The reliance by the defendant upon Rule 5.17 of the Rules and Regulations for Administrative Employees of the Board of Education requires that the legal basis upon which said rule is promulgated be given the scrutiny of judicial review.

The net effect of the rule, if it were to be rigidly applied and if it were to be interpreted in the manner advanced by the defendant, would be to summarily remove a provisional employee's rights to earned vacation pay simultaneously with his dismissal. Although the Court does not question the defendant's right to dismiss, it does challenge most strenuously its right to exercise the provisional employee's earned product of his labor.

It is an established principle that provisional appointees acquire no vested rights or vested interests to permanent appointment by virtue of their temporary service as provisional employees. Hence, a provisional or temporary employee, as such, has no actionable legal basis to support a move toward permanency in his position short of proceeding through the usual competitive civil service route. At best, his appointment is based upon privilege, not right, and thus the refusal by the appointing authority to employ him in permanent civil service certified status is not violative of his natural or inalienable rights. Fink v. Kern, 176 Misc. 114, 26 N.Y.S.2d 891, aff'd. 262 App.Div. 829, 29 N.Y.S.2d 502. Such, however, is not the issue in the instant case. Although the plaintiff had no greater natural rights than he had prior to his provisional appointment, he did continue to enjoy certain rights of which he was always the owner and of which he could not be deprived. Such rights included his right to receive compensation for work Actually performed, such compensation to take form either as salary or accrued vacation pay in accordance with the reiterated statutory portion of Rule 5.17 supra, which guaranteed that as a provisional employee he '* * * shall have the same annual leave benefits as regular employees * * *' To the extent that the plaintiff actually earned the amount as could be identified as accrued vacation pay, said accrual became a vested right which could not be legislated away by administrative or legislative fiat. To do so is in direct contravention of Article 1...