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June 22, 2012

Determining the permanent status of police officers designated detective or investigator in jurisdictions where competitive examinations for such titles are not held

Determining the permanent status of police officers designated detective or investigator in jurisdictions where competitive examinations for such titles are not held
Harnischfeger v Moore,
56 AD3d 1131

Civil Service Law §58(4)(c)(ii) provides in relevant part that, "[i]n any jurisdiction, other than a city with a population of one million or more . . ., which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer . . . or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation."

In this action the Appellate Division decided that the City of Rochester Civil Service Commission does not administer examinations for detective or investigator within the meaning of Civil Service Law §58(4)(c)(ii), nor had it classified these positions within the meaning of Civil Service Law §59-a, -- "Placement of detectives and investigators in classified service."

The New York State Constitution requires that "[a]ppointments and promotions in the civil service of the state . . . shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive. While the Commission used a "merit and fitness test," sometimes called an “unassembled examination,” to determine civil service promotions to these titles (see Civil Service Law §52[2]), the Appellate Division said that it has not shown it would be impracticable to use the "competitive examination" procedures for this purpose.

Therefore, said the court, the Commission's tests for these titles are not the equivalent of the "examinations for designation to detective or investigator" required in order to be exempt from the requirements set forth in Civil Service Law §58(4)(c)(ii) whereby an individual holding a permanent appointment as a “sworn officer” designated as a detective or an investigator attains tenure in such titles upon completing eighteen months of such assigned service.

Only holding "competitive examinations," as traditionally defined, will relieve a jurisdiction from applying the “eighteen month rule” set out in §58(4)(c)(ii) in such situations said the court.

Accordingly, the Appellate Division ruled that Supreme Court should have conducted a hearing to determine whether Harnischfeger and his co-plaintiffs were "temporarily assigned to perform the duties of detective or investigator" for a period of 18 months or longer and remanded the matter to the lower court for further action.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08779.htm


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