November 02, 2011

Selection for appointment - the Rule of Three and the Rule of One

UFT v. Board of Education, New York City School District, 298 A.D.2d 60

In United Federation of Teachers [UFT] v Board of Education, an action taken to confirm an arbitration award, the critical issue concerned the degree of discretion enjoyed by an employer in determining the "most qualified applicant to fill a vacancy." In effect the court was asked to determine if the “Rule of Three” set out in Civil Service Law §61 trumped a “Rule of One” set out in a collective bargaining agreement.

Linda Feil, a third grade teacher, applied for one of six "per session" positions in Project Read, an after school program. While Feil did not have an Early Childhood or Reading License, she did have 26 years experience as a primary school teacher, possessed a "common branch" teaching license, and had substituted for the Project Read program in the past. Feil was not selected for the job.

UFT grieved the "non-selection" of Feil for the position, contending that the Board's failure to appoint Feil was arbitrary and capricious. The arbitrator, after noting that there was no provision in the collective bargaining agreement [CBA] that addressed the procedure for filling a Project Read position, awarded the position to Feil, together with back pay. In making the award, the arbitrator relied on a provision of the agreement that barred the Board from acting in an arbitrary and capricious fashion.

Although the Board placed Feil in the position, it did not grant her any back pay. In an attempt to obtain the back pay provided for in the arbitration award, UFT initiated a CPLR Article 75 proceeding seeking an order confirming the arbitrator's award. The School Board cross-moved to vacate the arbitrator's award. Supreme Court granted UFT's motion to confirm the award and the Board appealed.

The Appellate Division reversed the lower court's determination, holding that (1) the arbitrator exceeded her authority when she awarded the position to Feil; and (2) the award violated strong public policy.

The court said that despite the fact that the arbitrator acknowledged that there was no contract provision setting out any procedure for selecting an applicant for the Project Read program, she nevertheless awarded one of the positions to Feil.[1]

Accordingly, the Court said it was necessary to analyze the reasoning behind the arbitrator's decision that the CBA had been violated. The court's conclusion: the arbitrator's ruling was based on the fact that she was not convinced that Feil should have been eliminated from consideration because none of four individuals selected for appointment were any more qualified than Feil. This, in the view of the court, constituted "contract making" rather than "contract interpretation."

In addition, the Appellate Division said that the arbitrator's decision, mandating the employment of the individual in this instance, violated strong public policy. Essentially, said the court, notwithstanding the absence of any contract procedure for selecting applicants for a specific job, the arbitrator took it upon herself to decide who was the best qualified applicant -- and decided that it was Feil.

Citing Honeoye Falls-Lima CSD v Honeoye Falls-Lima Education Association, 49 NY2d 732, the Court said "[i]t is well established that `it is beyond the power of a school board to surrender through collective bargaining a responsibility vested in the board in the interest of maintaining adequate standards in the classroom.'" Clearly the Board cannot be divested of its authority concerning the selection of personnel by an arbitrator's award; not even one promulgated under color of a provision contained in a collective bargaining agreement.[2]

The Appellate Division concluded that for the arbitrator to substitute her judgment for that of the appointing authority, "at least in this case."

In contrast, courts have upheld the right of the employer to give up a right to exercise its discretion in selecting an individual for appointment in the course of collective negotiations under certain circumstances.

In Professional, Clerical, Technical Employees Association v Buffalo Board of Education 90 N.Y.2d 364, the Court of Appeals upheld the validity of a collective bargaining agreement that provided for appointment pursuant to "a rule of one" -- the selection of the highest scoring candidate on a civil service examination for appointment to a vacancy. In effect this contract provision obviated the so-called Rule of Three [Civil Service Law Section 61], which gives the appointing authority the discretion to select from among at least three eligibles on the list when filing a vacancy.

§61, in pertinent part, provides that appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion.

Initially the Civil Service Law mandated the appointment of “those graded highest” – i.e., “the Rule of the List.” The Court of Appeals, however, ruled that such a requirement, in effect, made the Civil Service Commission the appointing authority [People v Mosher, 163 NY 32 (1900)]. As a result, Rule VIII [1] of the 1909 Rules for the Classified Service provided for the “selection of one of the three persons who are willing to accept [appointment] and are graded highest on the most nearly appropriate eligible list...” -- the so-called Rule of Three.[3]

The Professional, Clerical, Technical Employees Association [PCT] had filed a grievance objecting to the Buffalo City School District's "passing over" Melvin Cross, the highest-scoring candidate on a promotion eligible list for appointment to the position of Associate Account Clerk. Buffalo had appointed three lower ranking eligibles to fill three Associate Account Clerk vacancies.

PCT argued that the School District had agreed to be bound by the "rule of one" under a contract negotiated pursuant to the Taylor Law. The School District, however, contended that such a contract provision should not be enforced because enforcing it would violate strong public policy.

Holding the contract provision enforceable, the arbitrator directed the district to appoint Cross to the position of Associate Account Clerk, with back salary and benefits.

Could the arbitrator require the Board of Education to promote the highest-scoring negotiating unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement?

The Court of Appeals ruled that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain employees on an eligible list where a probationary period precedes the employee's attaining tenure.

Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court of Appeals affirmed the arbitrator's award, holding that:

The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law. Thus, the court concluded, public policy is not offended by an appointing authority's agreeing to be bound by the so-called "rule of the list."

The lesson here: in contrast to being mandated to follow the rule of the list or a "rule of one," by law, rule or regulation, an appointing authority may elect to forfeit its right to select from among the candidates standing highest on the eligible list.

This concept was acknowledged by the Appellate Division in deciding Feil. It said that its ruling "is not meant to suggest that a collective bargaining agreement may not require that the most senior qualified teacher within the bargaining unit be given preference in filling an open position. Such seniority provisions are, of course, fully enforceable."

[1] While the arbitrator recognized that the selection of teachers for Project Read was "not covered by the Agreement," she stated that "[t]he exercise of [managerial] discretion [in making such selections] is subject to the general arbitral rule that such an exercise must be undertaken in good faith and not be arbitrary, capricious or discriminatory in nature."

[2] : The Appellate Division, citing Cohoes City School Dist. v Cohoes Teachers Association, 40 NY2d 774, commented that although an arbitrator may render an award based on a school board's failure to adhere to contractually mandated "supplemental procedural steps preliminary to the board's final [action], the school board's ultimate determination on a matter bearing directly on the maintenance of educational standards generally remains immune from arbitral review".
[3] See, also, People v Gaffney, 142 AD 122, affirmed 201 NY 535. In Gaffney the court held that a law or rule limiting the selection for appointment to a single individual on an eligible list unconstitutionally interfered with the right of the appointing authority to select its own officers and employees.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor 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.
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