July 02, 2012

Court rules that the appointing authority made its appointments consistent with the requirements of Section 61.1 of the Civil Service Law

Court rules that the appointing authority made its appointments consistent with the requirements of Section 61.1 of the Civil Service Law
Cherry v New York State Civ. Serv. Commn, 55 AD3d 604

When New York State Civil Service Commission, in effect, affirmed a decision of the New York State Division of Housing and Community Renewal to promote certain individuals to the position of Rent Examiner 2, declining to promote Bruce Cherry to the title, Cherry sued seeking a court order compelling his selection for the position, claiming that he had been “passed-over” in violation of Section 61.1 of the Civil Service Law.

Section 61.1 sets out the so-called “Rule of Three,” requiring the appointing authority wishing to fill a position in the competitive class for which an appropriate eligible list exists “to 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….”

Supreme Court denied his Article 78 petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division held that each of the selections for promotion by the Division was made from one of the three individuals certified with the highest scores on the eligible list who were willing to accept the appointment. Accordingly, the determination of the New York State Civil Service Commission, which, in effect, affirmed the decision to promote these individuals, was neither arbitrary nor capricious.

The Cherry decision is posted on the Internet at:

NYPPL comments concerning The Rule of Three 

The Rule of Three has been the subject of much litigation. The decision by the Court of Appeals in Professional, Clerical, Technical Employees Association v Buffalo Board of Education [2 Rulings, #64 and #65], 90 N.Y.2d 364, provides some important insights as to the application of this concept.

The Association case arose when the Buffalo City School District "passed over" Melvin Cross, the highest-scoring candidate on a promotion examination eligible list for Associate Account Clerk and appointed three lower ranking eligibles to fill three Associate Account Clerk vacancies. The union claimed 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 argued that such a contract provision need not be honored because doing so would violate strong public policy.

Before addressing the court’s ruling in Association, some historical background might be helpful.

Prior to 1900 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission. In 1900 the "rule of one" was struck down by the Court of Appeals as unconstitutional. The Court ruled that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power [People v Mosher, 163 NY 32].

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1, as earlier noted, permits the appointing authority to select from among the three candidates who stand highest on the eligible list and are interested in the appointment. The rule of three was held valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.

In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed "reachable for appointment." On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority could only select from among the "top 60" eligibles and may not consider either of the two lower scoring eligibles for the appointment.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept the position.

In contrast, the "rule of one" is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the list willing to accept the appointment or keep the position vacant.

Although courts have ruled that a civil service commission cannot mandate a rule of one, the appointing authority itself may decide to be bound by such a rule. This has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise discretion with respect to selecting candidates for appointment.

In the Buffalo case, the issue was similar: Could an arbitrator require the Buffalo Board of Education to promote the highest-scoring bargaining 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 Board argued that such an award violated public policy "in that it restricts the statutory discretion vested in the appointing authority under Civil Service Law 61 to select one of the three highest-ranked candidates on an eligible list."

The Court of Appeals concluded that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain members of an eligible list where a probationary period precedes their permanent appointment.

This decision means that a rule of one can be agreed to in a collective bargaining agreement for positions in the competitive class and for both interdepartmental and intradepartmental promotions. Section 63 of the Civil Service Law provides that "every original appointment to a position in the competitive class and every interdepartmental promotion ... shall be for a probationary term." In addition, Section 61 authorizes appointing authorities to require "probationary service upon intradepartmental promotion" by rule.

Because certain employment rights are based on seniority under the Civil Service Law, determining an employee's "original date of permanent appointment" can be vital.

In Buffalo the Court of Appeals stated that the employee is deemed "permanently appointed" as of the effective date of his or her appointment from the eligible list. Except with respect to temporary appointments from an eligible list [Section 64.2, Civil Service Law], a probationary period precedes an individual's attaining "tenure status." Thus an individual's original date of permanent appointment is deemed to be the effective date of his or her initial, and uninterrupted, permanent appointment from the eligible list rather than from the date he or she attained "tenure" following the successful completion of his or her probationary period some months or years later.

In the grievance arbitration in Buffalo, the arbitrator found that the minutes of a series of labor-management meetings held in 1981, 1985 and 1986 reflected the parties' agreement to promote the first unit member on the eligible list. The arbitrator ruled that the "explicit agreement of the parties became part of their contractual agreement...." The arbitrator also determined that the Board violated a provision in the agreement that gave employees on the eligible list the opportunity to choose an assignment preference from among the available positions, "in order of their placement on the list." The remedy ordered by the arbitrator: Cross was to be appointed to the position Associate Account Clerk, with back salary and benefits, and, in addition, Cross was to be given the opportunity to select his assignment preference for one of the three positions in question.

The Court of Appeals said that Section 204 of the Civil Service Law --- the Taylor Law -- empowers and, in fact, requires a public employer to negotiate collectively with employee organizations and enter into written agreements governing the terms and conditions of employment. Additionally, the Court noted, public policy in this State favors arbitral resolution of public sector labor disputes.

Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court upheld the arbitrator award, ruling 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.”

The Court decided that the use of preferences in making a selection for promotion involves a term or condition of employment and thus is a proper subject for collective bargaining and subsequent arbitral resolution. Finding no prohibition in statutory or decisional law, nor any countervailing public policy, the Court of Appeals rejected the School Board's contention that "the discretion it is granted under Civil Service Law 61(1), which permits an appointing authority to select one of the three top-scoring candidates on a promotional eligible list, is a prohibited subject of bargaining". 

The Court concluded that there is nothing in the State's Constitution, the Civil Service Law or decisional law that prohibits an appointing authority from agreeing through collective negotiations on the manner in which it will select one of the top three qualified candidates from an eligible list for promotion.



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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