Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Supreme Court denied the petition of an individual seeking to annul the appointing authority’s:

[a] terminating him from his from his position during the required probationary period: and

[b] declining to reinstate the individual to his former “permanent position.”

According to the decision, the individual, then serving as a “Computer Aide,” was appointed to the position of “Computer Science Technician (CST), Level II” from an open-competitive eligible list.

The Appellate Division vacated the Supreme Court’s ruling and remanded the matter for a determination if the individual “effectively resigned* from his permanent position.”

The court explained that while an individual appointed from an open-competitive eligible list to the position from which he or she had been terminated during the probationary period would not be entitled to reinstatement to his or her prior, permanent position “if he voluntarily accepted his appointment to the new position, which would constitute an effective resignation from his prior, permanent position,” in this instance there was a triable issue of fact as to whether the individual “voluntarily accepted the appointment to the subsequent, probationary position.” Accordingly, the Appellate Division remanded the matter to Supreme Court for its further consideration.

A corollary issue that the Supreme Court may be required to explore: was the individual “promoted” to his or her new position within the meaning of the Civil Service Law? §63.1 of the Civil Service Law provides, in pertinent part, as follows:

When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.

Typically “promotion” is the word of art used to describe the advancement of an individual from a lower grade position to a higher-grade position in the “line of promotion.” In the absence or exhaustion of a “promotion list,” an appropriate “open-competitive eligible list” may be used to fill the vacancy.

Indeed, in situations where a promotion examination is not expected to produce sufficient eligibles to fill all the vacancies, actual and anticipated, during the life of the eligible list, an open-competitive examination may be authorized to be held simultaneously with the promotion examination, with the resulting open-competitive eligible list to be certified upon the exhaustion of the promotion eligible list.

In Bethel v McGrath-McKechnie, 95 N.Y2d 7, the Court of Appeals ruled that an individual who accepts an original appointment to a position from an open-competitive examination effectively resigned from his or her former position. The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation.

Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63 provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.

* Typically a resignation from a position is required to be in writing to be effective.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00397.htm