Certification of the eligible list and the rule of three [Civil Service Law Section 61.1]
Response to a question submitted by a reader
From time to time a reader will submit a question that may be of general interest to readers of New York Public Personnel Law.
One reader asked the following question:
The eligible list has 1 person ranked first [the Rank 1 candidate]; two individuals “tied” with the second highest score [the Rank 2 candidates] and 7 individuals tied with the third highest score [the Rank 3 candidates]. There is only one vacancy. The highest ranking candidate was offered, but declined, appointment to the position
May the appointing authority consider the “fourth highest candidate on the eligible list” for appointment to the vacancy?
Under these facts, both candidates in Rank 2 and all 7 candidates in Rank 3 have the same final examination score in their respective ranks. Accordingly, all nine [9] candidates [the two in Rank 2 and the 7 in Rank 3] are eligible for selection for appointment and would be certified for appointment by the responsible civil service commission. In other words, the field of eligible candidates consists of nine individuals, any one of whom may be selected for appointment to the position rather than limiting eligibility for selection to candidates physically listed 2, 3, and 4 on the eligible list.
Candidates ranked 3 and 4 are the “first and second” eligible candidates on the certification, while all 7 candidates in “Rank 3,” having “tied” scores, would be eligible for certification as the “number 3” eligible for the purposes of the so-called “rule of three.” [N.B Veteran’s credits, if any, may have an impact on a particular individual’s eligibility and, or, rank with respect to his or her placement on the eligible list.]
Tie-breaking rules determine a candidate’s physical position on the eligible list or certification [see highlighted language in BLUE below]. However, the physical placement on the list in this type of situation must be distinguished from the certification of the necessary number of eligibles for the purpose of selection in accordance with the rule of three as emphasized in RED below:
Civil Service Law Section 61 provides as follows.
Section 61. Appointment and promotion. 1. Appointment or promotion from eligible lists. Appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion; provided, however, that the state or a municipal commission may provide, by rule, that where it is necessary to break ties among eligibles having the same final examination ratings in order to determine their respective standings on the eligible list, appointment or promotion may be made by the selection of any eligible whose final examination rating is equal to or higher than the final examination rating of the third highest standing eligible willing to accept such appointment or promotion. Appointments and promotions shall be made from the eligible list most nearly appropriate for the position to be filled.
The bottom line: under the facts set out in this inquiry, the appointing authority may appoint any one of the nine individuals to the position. The same would be true if the individual ranked first was willing to accept appointment but one of the two eligibles in Rank 2 declined the position. But, in contrast, if none of the eligible candidates declined the appointment, the appointing officer would be required to select from among the three individuals in Rank 1 [one eligible] and Rank 2 [two eligibles] or decline to make an appointment, thereby leaving the position vacant.
On the other hand, had the candidate in Rank 1 not declined and had there been 7 individuals tied in Rank 2 and two individuals tied in Rank 3, the appointing authority would be limited to selecting the appointee from among the 8 eligibles in Ranks 1 and 2 and the 2 candidates in Rank 3 would not be included in the certification of the eligible list.
As can be seen from these examples, eligibility for inclusion of names on a “certification” is a moving target, depending on the number of individuals interested in the position, the number of individuals having identical examination scores in each “rank” and the number of vacancies available at the moment.
As to “tie-breaking,” this is a process used in order to determine the physical placement of a candidates name on the eligible list. Tie-breaking procedures may also be a factor in situations where the appointing authority has agreed to make its appointments on the basis of the “rule of the list” or the “rule of one,” [see Matter of Professional, Clerical, Technical Employess (Buffalo Board of Education), 90 N.Y.2d 364], as well as in layoff situations and in eligibility for reinstatement from a preferred list following layoff [see, also, Decisions of the Commissioner of Education 12933]. Many civil service commissions have adopted “tie-breaking” rules to this end. For example, the State Civil Service Commission has adopted the following rules [4 NYCRR 3.6; 4 NYCRR 4.2]:
3.6 Establishment of eligible lists. Every candidate who attains a passing mark in an examination as a whole and who meets the standards prescribed, if any, for separate subjects or parts of subjects of the examination shall be eligible for appointment to the position for which he was examined and his name shall be entered on the eligible list in the order of his final rating; but if two or more eligibles receive the same final rating in the examination, they shall be ranked in accordance with such uniform, impartial procedure as may be prescribed therefor by the Civil Service Department.
4.2 Appointment and promotion. (a) Except as otherwise provided herein, appointment or promotion to a position in the competitive class shall be made by the selection of a person on the appropriate eligible list willing to accept such appointment and whose final rating in the examination is equal to or higher than the rating of the third highest ranking eligible on the list indicating willingness to accept such appointment. The term “ranking” as used herein refers to the order in which the names of eligibles appear on the eligible list as provided in section 3.5 of this Title.
The courts have ruled that the procedure used to break ties must be “reasonable” Among the techniques that have been used: alphabetical order by last name; date of receipt of the application for examination form; the candidate’s social security number and the individual’s birthday.
Further, in Matter of Dutchess County BOCES, Case U-7309, PERB held that a union’s demand that the selection of appointees be made on the basis of seniority in cases where there are a number of applicants having substantially equivalent qualifications applying for the vacancy – i.e., a contractual “rule of one” -- is a mandatory subject of negotiations.
On this point, although an appointing authority may elect or agree to be bound by the “rule of the list,” it should be remembered that initially New York State civil service appointments from eligible lists were made in accordance with “the rule of one,” mandating the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission.
In 1900 the “rule of one” was struck down by the Court of Appeals as unconstitutional.
The Court reasoned that “if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power.” [People v Mosher, 163 NY 32].
This decision prompted establishment of the so-called “rule of three,” currently set out in Section 61 of the Civil Service Law, permitting the appointing authority to select from among the three candidates who stand highest on the eligible list interested in the appointment. The rule of three was held valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.
In contrast, the court’s do not appear to have any difficulty accepting the “rule of one” where the appointing authority has, as an exercise of its discretion, adopted such a method of selection as a matter of policy or as the result of collective bargaining.
