Tuesday, August 16, 2011

Noncompetitive promotion to a position in the competitive class


Noncompetitive promotion to a position in the competitive class
Rockland County Patrolmen's Benevolent Association, Inc. v. Prendergast, 25 AD3d 615

Section 52.7 of the Civil Service Law provides:

7. Promotion by non-competitive examination. Whenever there are no more than three persons eligible for examination for promotion to a vacant competitive class position, or whenever no more than three persons file application for examination for promotion to such position, the appointing officer may nominate one of such persons and such nominee, upon passing an examination appropriate to the duties and responsibilities of the position may be promoted, but no examination shall be required for such promotion where such nominee has already qualified in an examination appropriate to the duties and responsibilities of the position.*

The Rockland County PBA sued in an effort to annul the “non-competitive permanent appointment” of William Sherwood to the position of Chief of Police, Town of Clarkstown Police Department. Sherwood apparently had taken and passed a civil service examination for Police Chief but that list had expired prior to the date he was selected for appointment to the title.

The Appellate Division ruled that Sherwood’s promotion to the position pursuant to Civil Service Law Section 52.7 violated Section 4 of the Rockland County Police Act (RCPA).

RCPA Section 4 provides that: "[n]otwithstanding any other special or general laws to the contrary, such promotion examination shall be competitive examinations held by the state civil service commission regardless of the number of candidates eligible for such promotion."**

The Appellate Division said that although Civil Service Law Section 52.7 authorizes the non-competitive appointment of police officers for promotion, this provision is inconsistent with RCPA Section 4, as Section 4, which in this situation controls, requires competitive examinations for promotion regardless of the number of eligibles or applicants for promotion to the title.” ***

* This provision reflects the so-called “rule of three” whereby the appointing authority may select from among the three candidates scoring highest on the eligible list.

** In the words of the Appellate Division, the RCPA is a "special act which takes precedence over inconsistent provisions of the Civil Service Law," and "was intended to supersede any general statute with regard to the establishment, organization and operation of police departments in Rockland County."

*** If Sherwood was the single candidate eligible for promotion to chief at the time, it would appear that permanently appointing him to the chief title pursuant to CSL 52.7 would not, under these circumstances, satisfy RCPA Section 4.

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