Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list

Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list
Paolini v Nassau County, Supreme Court, Justice Winick, [Not selected for publication in the Official Reports]

The fact that an individual passes an examination does not give him or her any right to demand that he or she be appointed from the eligible list. The Paolini case involved such a demand, however.

A number of individuals serving as Social Welfare Examiner I with the Nassau County Department of Social Services had taken and passed the competitive promotion examination for Social Welfare Examiner II, Examination Number 71-299. Although the list had been established effective May 13, 1996, no appointments had been made from it.

The list had been extended in 1997, and again in 1998 and in 1999. However, it was due to expire in accordance with the provisions of Section 56(1) of the Civil Service Law. Section 56(1), subject to certain exceptions not relevant in this case, provides that the maximum life of an eligible list is four years from the date of promulgation.

Although Paolini did not claim that the Commissioner of the Department of Social Welfare took any steps to promote anyone on the eligible list, nor that any funds were approved to pay for promotions, he asked to the court to:

1. Extend the eligible list beyond May 13, 2000; and

2. Order the department to promote each petitioner to the position of Social Welfare Examiner II from the eligible list number 71-299 and pay them retroactive to the date on which they each first became eligible for promotion to date, with interest.

Paolini contended that a November 17, 1992 decision by State Supreme Court Justice Lockman -- Livingston v Nassau County Civil Service Commission, [Index 14457-92, not selected for publication in the Official Reports] -- was a precedent for this relief.

In Livingston the employer, the Fire Commission, met on September 5, 1991 and actually made a number of promotions from the eligible list. The minutes of the meeting indicated the appointments were approved. In addition, the salaries for these appointments were included in the County budget but the paperwork had not been processed because of a fiscal crisis. Judge Lockman ruled that the paperwork was a ministerial act, and directed that Livingston be compensated at the higher salaries retroactive to September 5, 1991.

Such was not the case with respect to any claimed action to promote the Paolini plaintiffs to a higher-grade position. Paolini conceded that the Department took no steps to effectuate the promotions nor was there any evidence of any communication to the County Executive or approval of the legislative body to make any such appointment.

Holding that the facts in Paolini were clearly distinguishable from the facts in the Livingston case, the court said that [o]ther than holding the test, no steps had been taken to promote anyone to Social Welfare Examiner II.

Finally, the court said that there is no proof that any monies were appropriated for higher salaries or that the higher-grade positions were budgeted at the time the Paolini plaintiffs passed the Civil Service test, as was the case in Livingston.

Accordingly, said the court, here there was more than a ministerial act required to effectuate the promotions -- and such required actions were not shown to have been taken by the county.

The court dismissed Paolini’s petition, noting a number of other procedural defects that otherwise would bar its granting any relief in this case.

1. There was no prior determination by an administrative body, a prerequisite for bringing an Article 78 proceeding. The administrative remedies must be exhausted with a final determination for the court to review.

2. This was no decision by the Civil Service Commission to review and it is not within the court’s power to usurp the ability of an administrative agency to make such determinations.

3. There was no Notice of Claim filed with the county as required by Section 58-e of the General Municipal Law.