New York Public Personnel Law: Qualifying for promotion examination

October 03, 2011

Qualifying for promotion examination

Qualifying for promotion examination
Liebe v Nassau County CSC, 291 A.D.2d 451

Richard Liebe asked the Nassau County Civil Service Commission to add his name to the list of eligible candidates for the position of Sanitary Engineer IV. The Commission said no, it would not do so and Liebe sued.

The Appellate Division said that the Commission's refusal to add Liebe's name to the promotion list of individuals qualified for the promotion to the position of Sanitary Engineer IV was neither arbitrary nor capricious.

The court noted that Section 52.1 of the Civil Service Law provides that vacancies in the competitive class shall be filled, as far as practicable, by promotion of persons holding lower grade positions in the direct line of promotion. According to the decision, Liebe simply "did not hold a position in the direct line of promotion."

Who determines if a position is in the "direct line of promotion or not?" Section 52.1 states that the State Department of Civil Service or the Civil Service Commission having jurisdiction makes that determination.

The decision also notes that Liebe made no showing that it was impracticable or that it was against public interest for the Nassau County Civil Service Commission to limit eligibility for the promotion examination for Sanitary Engineer IV to employees in positions in the direct line of promotion.

However, there are a number of exceptions to the general rule concerning promotion from within via the direct line of promotion.

CSL Section 51.1 permits the State Department of Civil Service or a municipal commission to conduct an open competitive examination to fill a vacancy normally filled by promotion examination.

In such cases, however, any employee who believes that a promotion examination should be held to fill the vacancy may submit his or her request to the Department or appropriate municipal commission, stating the reasons why he or she believes it to be practicable and in the public interest to fill the vacancy by promotion examination.

Further, where there are less than three persons eligible for promotion in the promotion unit or department where the vacancy exists, the department or municipal commission may conduct an open competitive examination or an employee may be nominated for a noncompetitive promotion examination in accordance with the provisions of CSL Section 52.7.

Under certain circumstances the Department of Civil Service may authorize a "noncompetitive open-competitive examination" to fill the vacancy in `State Departments and Agencies' consistent with the requirements set out in the Rules for the Classified Service, 4 NYCRR 4.2(b).

A relatively rarely used type of noncompetitive examination is authorized by CSL Section 70.4. A Section 70.4 examination may be authorized in situations involving the transfer of an employee to a position in a similar grade where there is a title change. In such cases, a permanent employee in the competitive class who meets all of the requirements for a competitive examination and who is found otherwise qualified by the State Civil Service Commission or the responsible municipal civil service commission may be given a non-competitive examination to the "different position classification."

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.