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Thursday, March 22, 2012

An appointing authority may agree to limit its discretion with respect to selecting an individual for appointment to a position without offending public policy

An appointing authority may agree to limit its discretion with respect to selecting an individual for appointment to a position without offending public policy
Matter of Lucas (City of Buffalo), 2012 NY Slip Op 01886, Appellate Division, Fourth Department

An arbitrator ruled that the City of Buffalo had violated the collective bargaining agreement (CBA) by ignoring a binding past practice concerning who should be offered  “the right of first refusal for the acting-time position [sic] of Assistant Water Distribution Superintendent.*

Ultimately the parties were unable to implement the arbitration award and the arbitrator directed the City to pay one individual the sum of $54,282.71 and a second the sum of $1,094.99 based on its failure to provide the two employees “with the right of first refusal.”

Supreme Court confirmed both awards and denied the City’s counterclaims to vacate the awards.

The City appealed, contending that the awards require them to violate Civil Service Law §61(2) and §64(2) and are against public policy. The Appellate Division disagreed and sustained Supreme Court’s ruling.

The court explained that while §61(2) prohibits employees from serving “out-of-title” in nonemergency situations, the City’s submissions to the court establish that, at least during the relevant time period, it considered acting-time positions to be temporary appointments under §64(2), and such temporary appointments are made "without regard to existing eligible lists."

Further, said the court, §64(2) does not specify that there must be an emergency situation for an employee to be temporarily appointed to work for a period not exceeding three months in an acting-time position, citing CSL §61[2]. Nor, said the Appellate Division, was there any indication in the record that the employees who worked in acting-time positions during the time period involved in the grievance were improperly appointed to those positions in violation of the Civil Service Law.

Although as noted §64(2) places a three-month time limit on temporary appointments that are completed without reference to an existing eligible list, the arbitration award did not require the City to grant the most senior caulker supervisor an acting-time position whenever an Assistant Water Distribution Superintendent is absent. The award “merely states that, if there is an acting-time position, then the right of first refusal must be given to the most senior caulker supervisor.”

The Appellate Division also rejected the City’s argument that “under the circumstances of this case, a limitation on their discretion regarding acting-time positions violates public policy.” Citing  Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, the court said that “A public employer is not prohibited by public policy considerations from agreeing to limit its discretion in the manner in which it appoints employees.”

In the Buffalo Board of Education case the parties’ collective bargaining agreement provided that appointments to vacant positions in the competitive class would be made in accordance with the “Rule of One,” sometimes referred to as the “Rule of the List,” whereby the highest person on the eligible list for appointment to a position in the competitive class willing to accept the appointment would be appointed to the vacancy notwithstanding the so-called “Rule of Three” set out in §61.1 of the Civil Service Law.

In contrast, the Rule of One applies with respect to selection of the individual for appointment from a preferred list [see CSL §81.2].

* The arbitration award did not define what constitutes an “acting-time position.”

The decisions is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01886.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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