What happens when the government makes a mistake?

But that never happens. Yeah. Right. Sometimes, however, the mistake is in your favor. Can you take advantage of it?

The New York Public Personnel Law blog describes a case where somebody tried and failed, in "Clerical error in recording an educator’s tenure area does not vest educator with tenure in the tenure area recorded". The claimant was a special education supervisor, but when she completed her probationary period her records showed her tenure as administration rather than special education supervision. Her position was abolished, and when a vacant elementary school principal position - an administration position - was filled by someone else she objected that she had superior rights to the position under New York law.

Reality won. The Commissioner deciding the case found that

• according to a revised job description signed by the claimant some years earlier, her tenure area was changed then from a related special education area to special education supervisor;
• there was no indication in the Board’s minutes that it was consciously changing the claimant's tenure area to administration or that she was consenting to a change;
• the Board could not retroactively change the scope of the tenure area in which the claimant was serving.

The Commissioner found that the the listing of the claimant's tenure area as administration "was due to clerical error" and that her actual tenure area was special education supervisor, meaning she had no priority right to the principal's job.

Generally, government agencies have rules for dealing with "ministerial" errors in their establishing statutes or their regulations. In most instances, as in the case above, reality wins. The sword usually cuts both ways. The challenge for the practitioner, whether representing the agency or the aggrieved party, is finding the facts - usually old records - that evidence reality. I've dug in the National Archives and even used affidavits of retired officials. Sometimes you have to be creative. EMM