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June 7, 2010

Applying the rule of three in selecting candidates on an eligible list for appointment

Applying the rule of three in selecting candidates on an eligible list for appointment
Hatala v McCaul, App. Div., First Dept., 253 A.D.2d 666, Motion for leave to appeal denied, 93 N.Y.2d 809

Although Terry J. Hatala scored higher than a number of other applicants in a written test for promotion to Supervising Bank Examiner, he was passed over because he “did not do as well as other eligible job aspirants in the evaluative interview conducted by the Banking Department’s promotion committee.”

The Appellate Division rejected Hatala’s challenged to the process used by the Department to make its promotion determination.

The Court concluded that the Department’s use of an interview to determine which of the three then eligible candidates for promotion should in fact be promoted was consistent with Section 61.1 of the Civil Service Law -- generally referred to as the rule of three.

According to the decision, Section 61.1 “affords a State agency broad discretion to adopt procedures to determine a candidate’s merit and fitness for employment” and an appointing authority may adopt and use such procedures after an eligible list has been promulgated and candidates certified for appointment.”

Hatala also claimed that the interview procedure violated his right to “Equal Protection.”

The Appellate Division rejected his argument, holding that the department’s use of an interview process to make its promotion selection involved a contemporaneous evaluation of all candidates for the promotion and thus they all “were subjected to the same evaluative process.”

Some history concerning the evolution of the “rule of three."

In 1899 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list."

The Civil Service Law of 1883 had been amended [Chapter 354, Laws of 1883] to provide for “the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission.”

In 1900 the "rule of one" set out in then Civil Service Law Section 14 was struck down by the Court of Appeals as unconstitutional.

In People v Mosher, 163 NY 32, the Court of Appeals ruled 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.”

Following the Mosher decision, then Section 14 of the Civil Service Law was amended by Chapter 370 of the Laws of 1899 to provided that “appointments shall be made from among those graded highest,” thus restoring the language initially set out in the Civil Service Law of 1883.

Ultimately the so-called "rule of three"* as currently set out in Section 61 of the Civil Service Law, was enacted in concert with the recodification of the Civil Service Law in 1959 [Chapter 790 of the Laws of 1958] and provides for the appointing authority's selecting from among the three candidates who stand highest on the eligible list and who are interested in the appointment.

While the rule of three permits the appointing authority to select from among the three highest scoring candidates for appointment to positions in the competitive class, there may tied scores. In the event there candidates have tied scores, essentially the appointing authority may select from among all those having the same score.

For example, under rule of three, if 2 candidates achieved a score of 96 and 14 got a test score of 95, all 16 candidates would be certified and the appointing authority could select any one of the 16 for the appointment.

In contrast, were there 14 candidates attaining a score of 96 and 2 attained a score of 95, the appointing authority could select from among the 14 “top rated eligibles” rather than the 16 under the conditions described in the first example.

In some instance an appointing authority may follow a "rule of one" by always selecting the top-scoring individual for the position. In some instances this is done on the basis of tradition [see, for example, Matter of Horowitz, 70 AD2d 85], in other instances pursuant to the terms of a collective bargaining agreement.

Indeed, in a “rule of the list” case flowing from an alleged violation of the collective bargaining agreement, Matter of Professional, Clerical, Technical Employees Ass'n (Buffalo Bd. of Education), 90 N.Y.2d 364, the Court of Appeals concluded that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain members of an eligible list where a probationary period is required in order to attain tenure in the position to which they have been permanently appointed.

In contrast to a "rule of the list" mandated by a civil service commission, an appointing authority may itself elect to establish or agree such a rule in the course of collective bargaining and be bound thereby.

The Buffalo decision indicates that selection for appointment following the rule of one can be agreed to in a collective bargaining agreement for positions in the competitive class and for both interdepartmental and intradepartmental promotions in concert with providing for appointments subject to probationary period as Section 63 of the Civil Service Law provides that "every original appointment to a position in the competitive class and every interdepartmental promotion ... shall be for a probationary term" while Section 61 authorizes appointing authorities to require "probationary service upon intradepartmental promotion" by rule.

One statutory "rule of the list" has thus far survived. Section 81 of the Civil Service Law, providing for appointment from a preferred list, subject to certain exceptions, requires that "the names of persons on a preferred list shall be certified therefrom for reinstatement to a vacancy in an appropriate position in the order of their original appointments."

* The rule of three was held lawful by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.


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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.