Wednesday, July 28, 2010
Temporary appointment to a position in the public service
CSEA Local 1000 v NYS Dept. of Civil Service, App Div, 250 A.D.2d 968, Motion to appeal denied, 92 N.Y.2d 808
The State Fair Division of the New York State Department of Agriculture and Markets employed a number of individuals in noncompetitive class or labor class positions and designated them as “temporary employees.” CSEA Local 1000 commenced an Article 78 action to compel the State Department of Civil Service to grant each such individual “permanent employee status.”
A state Supreme Court justice dismissed CSEA’s petition after finding that these employees “were hired as temporary employees and did not thereafter obtain permanent status by operation of law or otherwise....” Accordingly, the Court ruled, these individuals were not legally entitled to permanent status. The Appellate Division affirmed the Supreme Court’s decision.
The rationale underlying the Appellate Division’s decision wasthat the positions in question were not funded by the State. The ability to establish and pay for these positions depended on revenues from the annual State Fair and other non-State revenue sources.
The record showed that the individuals were “appointed to temporary positions” and such appointments were “on a temporary basis.” The decision comments that “fundamentally an unlawful extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all of the requirements for permanent appointment at the time of the temporary appointment,” citing Reis v New York State Housing Finance Agency [77 NY2d 915] and Montero v Lum [68 NY2d 253].
However, it should be noted that the Reis and Montero cases concerned claims of permanent status in competitive class positions advanced by provisional employees. Section 64 of the Civil Service Law provides for temporary appointment, including temporary appointments to positions in the competitive class; Section 65 of the Civil Service Law specifically provides for provisional appointment to competitive class positions.
Nothing in the Civil Service Law precludes making a permanent appointment to a temporary position although such an appointment has the potential of resulting in a “layoff/preferred list” situation. In addition, Section 64.5 of the Civil Service Law authorizes permanent appointment to an encumbered position under certain circumstances. Section 64.5 appointments are commonly referred to as “contingent permanent appointments.”
In any event, an appointment to a temporary position should be distinguished from a personnel transaction involving the appointment of individual to a position “temporarily vacant” due to the permanent incumbent being on a leave of absence without pay. Generally, a reference to a “temporary position” reflects financial considerations, such as the source of funding or the continued availability of funds. In contrast, “temporary appointment” reflects the employment status of the individual and the tenure rights, if any, that flow from such status. Accordingly, there is a significant difference between a “temporary position” and a “temporary appointment.”
To illustrate the need to distinguish between the status of a position and the status of an individual serving in a position, the Appellate Division did not have any trouble holding that permanently appointing a candidate on an eligible list to a non-existent position just before the list expired did not offend the Civil Service Law. The appointment was made “from the old list” in anticipation of a vacancy that would result upon the retirement of the then incumbent a few weeks later. The Appellate Division dismissed the action brought by individuals on the new eligible list for the position challenging the appointment to a position that did not exist.
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