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Employee seeks a hearing after being denied a promotion

Employee seeks a hearing after being denied a promotion
Wagner v NYC Transit Authority, 266 AD2d 304

The New York City Transit Authority [NYCTA] decided that Robert Wagner should not be promoted to the position of dispatcher because of his poor attendance record with the Authority. Wagner appealed and persuaded a State Supreme Court justice to direct the Authority to give him a hearing concerning the question of his promotion and make a new decision after the hearing was completed.

The Appellate Division reversed, noting that in contrast to NYCTA’s documentary evidence demonstrating that Wagner was not promoted because of his chronic absenteeism, Wagner did not present any evidence to “rebut or controvert” NYCTA’s proof.

The court said that Section 61 of the Civil Service Law gives the appointing authority “discretionary appointive power,” and a candidate for appointment or promotion does not acquire any protected property interest merely by reason of his placement on an eligible list. Accordingly, the decision of an appointing authority not to promote a particular individual “will not be disturbed as long as the determination is supported by a rational basis.” Finding that Wagner “merely alleged in conclusory fashion that the [authority’s] determination was arbitrary and improper,” the Appellate Division ruled that there was no basis for a “promotion hearing” and the Wagner’s petition should have been dismissed by the lower court.

However, Wagner also claimed that he was entitled to a hearing because NYCTA did not give him any written notice of his non-selection for the promotion required by Section 61.3 of the Civil Service Law.

Section 61.3 provides that when a candidate is selected, each candidate considered, but not selected, is to be advised of his or her “non-selection.”*

The Appellate Division said that the purpose of Section 61.3 is to provide individuals on an eligible list with information regarding their status in the civil service system so that they may make intelligent career choices. The opinion notes that neither Section 61.3 itself nor the failure of an appointing authority to comply with its provisions give an unsuccessful candidate a basis for challenging the selection decision made by the appointing authority. In contrast, a disappointed candidate may challenge his or her non-selection on the grounds that such non-selection is based on unlawful considerations by the appointing authority.

* Although Section 61.3, in pertinent part, states: “Persons on an eligible list … considered and not selected for appointment or promotion pursuant to this section shall, whenever another candidate is appointed or promoted, be given or sent written notice by the appointing authority of such non-selection …”, it does not require the appointing authority to provide the candidate with the reason or reasons why he or she was not selected for the appointment.

Public Personnel Law Handbooks

The Discipline Book, -

A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances -

A 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

The Layoff, Preferred List and Reinstatement Manual

A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel

A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on