Leave of absence from former position upon appointment from an open-competitive eligible list not required

Leave of absence from former position upon appointment from an open-competitive eligible list not required
Bethel v McKechnie, Ct. of Appeals, 95 NY2d 7

Is an appointing authority required to hold open a permanent employee’s position until the individual has completed his or her probationary period in a position to which he or she has been appointed from an open-competitive eligible list?

In Bethel the Court of Appeals ruled that a public employee who accepts an appointment to a position from an open competitive examination effectively resigned from his or her former position.

Earlene Bethel applied for, and was granted, a leave of absence from her permanent position as Contract Specialist II with New York City’s Community Development Agency [CDA] to accept a provisional appointment as a Staff Analyst with CDA. New York City’s Human Resources Administration [HRA] approved the provisional appointment with CDA, and, presumably her leave of absence from her permanent position.

In April 1995, the list for Staff Analyst was certified to HRA and Bethel was permanently appointed to the title, subject to her satisfactory completion of a one-year probationary period. After starting her probationary period, HRA told Bethel that her leave from her Contract Specialist position was canceled. Bethel did not challenged HRA’s action at that time.

Bethel was terminated before completing her probationary period for allegedly committing several acts of insubordination. When CDA refused to reinstate Bethel to her former position of Contract Specialist, she sued, claiming that she could not be terminated except after notice and hearing in accordance with Section 75 of the Civil Service Law because she held a permanent appointment as a Contract Specialist. The critical issue to be resolved:

Was Bethel promoted to the Staff Analyst position as that term is used in the Civil Service Law?

Section 63(1) of the Civil Service Law provides that when probationary service is required upon an employee’s promotion, the position formerly held by the individual promoted shall be held for him and shall not be filled, except on a temporary basis, pending completion of his or her probationary term.*

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(1) 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.**

Although the Court of Appeals noted that the term promotion is not explicitly defined in the Civil Service Law, the law clearly distinguishes between open competitive examinations and promotional examinations.

While Bethel received a higher salary in the new position, the court decided that she was not promoted within the meaning of the Civil Service Law because under Section 52.9 of the Civil Service Law, an increase in salary will be deemed a promotion only if the employee receives compensation beyond the limit fixed for the grade in which such office or position is classified.***

The Court said that agencies are not (1) required to keep open a prior permanent position for a probationary employee who has been neither promoted nor transferred and (2) Bethel was not entitled to a hearing prior to the cancellation of her leave of absence from her former position.

Concluding that Bethel was not promoted within the meaning of the Civil Service Law, the Court of Appeals ruled that Bethel effectively resigned her permanent position upon her accepting a permanent appointment as a Staff Analyst.

* Although a temporary appointment [see subdivisions 1 and 2 or Civil Service Law Section 64] or a contingent permanent appointment [see Civil Service Law Section 64.4] may be made to the resulting vacancy in such situations, a provisional appointment cannot be made to such a vacancy as the position “is not wholly vacant” [see Civil Service Law Section 65].

** Engoren, a caseworker, was appointed Probation Officer Trainee [POT] after passing an open competitive examination rather than a promotion examination. As there was no evidence existed that the open competitive examination was conducted in lieu of or simultaneously with a promotional examination, or that Engoren’s service as a Caseworker qualified her for a promotion as a POT, the court decided that she failed to prove that she had been promoted when appointed as a POT.

*** The Court of Appeals also noted that “Except as provided in [Civil Service Law] section fifty-one,” vacancies in positions in the competitive class are typically to be filled “by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as determined by the state civil service department or municipal commission…”