Applying the Rule of Three when there are tied scores involved

Applying the Rule of Three when there are tied scores involved
Source: A Google Alert received by NYPPL

A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:

“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.

“I am familiar with the "rule of three" and have researched New York State Civil Law, NYS CSL 61.1 in particular. Every example that is given refers to a situation in which one promotional opportunity is available. For example, if one eligible scores 100, one eligible scores 95, and one eligible scores 90, and all the other candidates score lower than 90, the rule of three means that the eligible who scored the 90 can be given the promotion over the two eligibles who scored higher that he/she did.

“However, I did not come across an example of how the rule of three would work when more than one position is available.”

NYPPL’s response:*

Considering the application of the Rule of Three on a “step-by-step basis,” the Rule of Three “works” as follows:

1. As to the five candidates receiving a score of 100, as one has declined, the four remaining eligibles are certified. Two are appointed, resulting in five vacancies yet remaining to which appointments may be made.**

2. The next group of candidates eligible for selection for appointment would consist of the two remaining candidates scoring 100 plus the four eligibles that received a score of 95, a total of six eligibles. The four eligibles attaining a score of 95 are appointed, leaving one vacancy yet to fill.

3. The next group of candidates eligible for selection for appointment would consist of the two candidates with a score of 100 and the one [or more] eligibles attaining a score of 90. A candidate who received a score of 90 on the examination may be lawfully selected, thereby filling the last available vacancy, without offending the Rule of Three.

Another example:

Ten candidates received scores of 100 while four achieved scores of 95 and one candidate had a score of 90. Again, one of the candidates attaining a score of 100 declines, leaving nine candidates with scores of 100 interested in being appointed. With seven vacancies available for appointment, the appointing authority may fill all, some or none of the vacancies but only the nine interested candidates attaining scores of 100 are "reachable" for appointment. Candidates receiving a score of less than 100 are not included on the list certified for appointment and thus are not part of the candidate pool. Why? Because once six appointments are made from among the nine eligibles attaining a score of 100, three eligibles remain available for selection to fill the seventh and last vacancy, thus triggering the Rule of Three.

If, however, a second eligible attaining a score of 100 were to decline the appointment, all four eligibles with a score of 95 would become eligible for appointment and they, together with the remaining eight eligibles have a score of 100, would constitute a pool of twelve individuals reachable for appointment and the appointing authority could select any seven of the twelve for the appointment.***

In other words, the number of candidates eligible for appointment at any particular point in time is a "moving target."

[NYPPL periodically post answers to selected general questions concerning public personnel law issues. Readers may e-mail their question to publications@nycap.rr.com]

* This analysis assumes that the "entire eligible list" consisted of ten eligibles: five candidates attaining a score of 100, four candidates attaining a score of 95 and one candidate attaining a score of 90. However, had there been more than one candidate attaining a score of 90, all the eligibles attaining a score of 90 would have been in the "candidate pool."

** N.B. An appointing authority is not required to use a mandatory eligible list and may, as a matter of discretion, elect not to fill the vacancy. On the other hand, an appointing authority may use a “non-mandatory” eligible list to fill a vacancy either on a permanent basis or on a provisional basis. However, if the appointing authority makes a provisional appointment “from a nonmandatory list,” the appointee may attain tenure in the position under certain circumstances [see Civil Service Law §65.4.] The seminal case that considered such an appointment situation is Matter of Roulette, 40 AD2d 611.

*** In some departments and agencies the appointing authority may elect, or pursuant to the terms of a collective bargaining agreement, be required to fill vacancies on the basis of the "Rule of the List" whereby individuals on an eligible list are appointed in the order of their rank or position on the list.