Provisional appointments

Provisional appointments
Civil Service Law 65.4

From time to time your editor has commented that "... under certain circumstances a provisional appointment may mature into a permanent, "tenured" appointment by operation of law...."

This statement usually results in a number of readers asking: Isn't it "black letter law" that a provisional appointment can never "mature" in a permanent one? Such cases as Matter of Gaiser, 15 AD2d 793, support of this position.

It is true that as a general principle, a provisional employee cannot attain tenure in the position merely because he or she has served as a provisional employee for a long time.

Further, a provisional appointment cannot ripen into a permanent one unless the individual is qualified for permanent appointment (Russell v Hodges, 470 F2d 212).

However, 65.4 of the Civil Service Law sets out an exception to this general rule. Section 65.4 provides that a provisional employee is automatically "afforded permanent appointment" in the position in the event either of two specific circumstances is satisfied. These are:

1. The provisional employee (a) takes and passes an examination for the position and (b) the resulting list is not a "mandatory list" and (c) he or she is continued in the position for a period greater than the required probationary period for the position; or

2. An individual is (a) on a nonmandatory eligible list for the position and is (b) provisionally appointed to the position and (c) is continued in the position beyond the maximum probationary period for the position.

The reason for this exception is to avoid the perpetuation of untenured employment when the individual is eligible for permanent appointment but the appointing authority declines to use an eligible list on the grounds that it is not a mandatory list.

To avoid the conversion of a provisional appointment into a permanent one by operation of law, the appointing authority must remove the provisional from the position before the eligible list is promulgated and either:

(a) keep the position vacant or

(b) appoint an individual not on the eligible list.

The effect of retaining a provisional for more than nine months after his or her name is certified on the eligible list was considered in the landmark case of Roulett v Hempstead Civil Service Commission, 40 AD2d 611.

The Roulett case holds that if a person on a nonmandatory eligible list is provisionally appointed to a position, or is continued as a provisional employee after being certified from a nonmandatory list, he or she will be deemed to have been permanently appointed to the position.

What is the effective date of the permanent appointment? In Lelio v Rutkowski, 127 Misc2d 383, the Court indicated that a provisional employee is deemed to have automatically acquired permanent competitive status as of the effective date of the eligible list if he or she has:

(a) served as a provisional appointee in excess of nine months; and

(b) is in such status when the eligible list is published; and

(c) there are only two [or fewer] qualified and interested candidates for the single vacancy to be filled.

The attainment of tenure, however, is contingent on the satisfactory completion of any required probationary period.

Citing LaSota v Green, 53 NY2d 631, the Lelio Court said that the provisional appointee may not be removed from the position unless he or she fails to satisfactorily complete the required probationary period.

The Court refused to permit the appointing authority to terminate Lelio pursuant to the provisions of 65.3 although 65.3 allows the appointing authority to terminate a rovisional employee within two months following the establishment of an appropriate eligible list.

The Court ruled that because Lelio had already served as a provisional in the position for a period greater than the probationary period otherwise required and was in the position on the day the eligible list was promulgated, he automatically became a permanent appointee on that day.

The LaSota and Lelio decisions suggest that appointing authorities must give careful attention to the quality of service of provisional employees and the wisdom of continuing their employment.

If a provisional employee is retained for more than nine months, his or her subsequent eligibility for permanent appointment from a nonmandatory list will eliminate any possibility of choice by the appointing authority with respect to filling the position.

In contrast, if a provisional employee passes an examination for the position and is reachable for appointment from a mandatory list, he or she does not automatically attain permanent status.

There are a number of cases dealing with this issue. One key decision is Becker v Civil Service Commission, 61 NY2d 374.

In Becker the Court of Appeals held that 65.4 of the Civil Service Law is to be strictly construed and the section applies only where there are fewer than three persons willing to accept the appointment on the eligible list.

Becker, a long-term provisional employee, passed the required examination for permanent appointment and was immediately reachable for appointment. Although continued in the position beyond the two-month period allowed by 65.3 following the certification of the list, she was later reinstated to her permanent, lower grade position.
Becker sued, contending that she had attained permanent status by operation of law, citing 65.4.

The Court ruled that provisional employees do not attain permanent status, even if continued in the position for more than the two-month period set by 65.3, unless the list is "non-mandatory."

Similar complications were considered in Matter of Haynes, 55 NY2d 814, a case involving the dismissal of a long-term provisional after the promulgation of the eligible list but before the statutory two-month period expired and Matter of LaSota, 53 NY2d 631, a case involving more vacancies than there were persons certified on the eligible list, which the Court said resulted in a "nonmandatory list situation."

In the Haynes case, the Court of Appeals ruled that where there is a mandatory list, the appointing authority may remove a person even if he or she has (a) served in excess of nine months as a provisional and (b) is serving as a provisional when the eligible list is
certified and even if the provisional employee is one of the top three eligibles for the single vacancy to be filled.

What if the list, although mandatory, is inadequate to fill all the vacancies that exist?

This was the situation in the LaSota case. In this case it was argued that the eligible list was exhausted because there were more vacancies to be filled than there were names certified on the list. LaSota, a provisional employee, was eligible for appointment from the list. He was retained in the position as a provisional. What was his status?

The Court said that if a person has (a) served as a provisional appointee for more than nine months and (b) is in such status when the eligible list is published and (c) there are fewer qualified and interested candidates than there are vacancies to be filled, the
provisional employee is deemed to have automatically acquired permanent competitive status as of the effective date of the eligible list.

However, the individual must satisfactorily complete any required probationary period.

In LaSota's case the Court said that a provisional employees could not be removed from his or her position even during the two-month "window period" referred to in the Haynes case.

Why not? Because there were more vacancies than eligibles on the list, the Court concluded that the list was a "nonmandatory list."

These decisions all flow from the Court's analysis of the several subdivisions of 64 and 65 of the Civil Service Law. These results may be summarized as follows:

Where there is a nonmandatory list, a provisional appointee attains tenure if he or she is continued as a provisional when otherwise eligible and reachable for permanent appointment within the meaning of 61 of the Civil Service Law (or is reappointed to the position) for a period equal to or greater than the required probationary period after
becoming eligible and qualified for appointment to the position on a permanent basis.

In such a situation it seems that the provisional need not have even served as a provisional for nine months. The only requirement is that a provisional "complete the required probationary period" after having been otherwise fully qualified for permanent appointment.

Another case in which the status of the appointee was critical is Snyder v Civil Service Commission, 72 NY2d 981.

In the Snyder case the Court of Appeals considered the impact of 65.4 on a contingent permanent appointment. The decision illustrates the differences between various types of appointments and the rights, or lack of rights, that result.

Snyder had been "officially" reported as having been "provisionally" appointed to a higher level title. However, the permanent incumbent was on leave of absence without pay from the position.

About two years later Snyder's "provisional appointment" was rescinded and he was reinstated to his permanent title in a lower grade. The individual on leave from the higher level position, however, had not returned to the position.

Snyder, in reality, held a temporary appointment to the higher level title while it was encumbered, a point that was to prove critical in the decision by the Court of Appeals.

Claiming that he could not be removed from the higher level position unless found guilty of misconduct or incompetence, Snyder sued the Department, seeking reinstatement and back salary.

Snyder advanced the theory that he had attained "contingent permanent status" [see the Rules of the State Civil Service Commission, 4 NYCRR 4.11] in the higher level position pursuant to 65.4 of the Civil
Service Law because (1) he was qualified for the promotion to the title pursuant to 52.6 of the Civil Service Law and (2) he had been retained as a provisional in the higher position for more than nine months.

The Department, on the other hand, maintained that an appointment on a contingent permanent basis was discretionary and therefore Snyder could not claim "contingent permanent status" unless he had been actually appointed to the position on that basis by the appointing authority.

The Court ruled against Snyder, pointing out that Snyder had been appointed to the higher level position as a "temporary" employee rather than as a provisional employee. This disposed of the "automatic promotion issue," as, according to the Court, 65.4 is not relevant in "temporary appointment" situations.

Section 65 provides for "filling a vacancy" in the competitive class when no eligible list is available. 64 of the Civil Service Law, in contrast, authorizes a temporary appointment for up to three months without regard to any eligible list, except that "when an employee is on leave of absence a temporary appointment ... may be made (to that position) for a period not exceeding the authorized duration of such leave...."

In Snyder's situation there was no "vacancy" to be filled as the position involved was encumbered due to the leave of the permanent incumbent.

Therefore Snyder was a temporary appointee, eligible to serve, at most, for the duration of the permanent incumbent's leave. Further, 64 does not provide for the conversion of a "temporary appointment" into a permanent one as could result in a 65.4 situation.

Critical to the resolution of the Snyder case was the existence of a vacancy -- a position to which a permanent appointment could be made. Although the term "to fill a vacancy" is sometimes used to describe a situation where an appointment to an encumbered position is made, for the purposes of 65 it means a position wholly vacant and for which an examination must be held if an individual is appointed to it.

While temporary appointments may be made to "encumbered positions" for the duration of the absence of the incumbent, there is one situation in which a temporary appointment may be made to a wholly vacant position -- when the position is expected to be abolished in the near future. In some instances the temporary appointments must be made from an eligible list, if available.