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Monday, December 03, 2012

Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution

Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution
Ulster County Sheriff's Employees Assn., CWA Local 1105 (Ulster County Sheriff's Dept.), 2012 NY Slip Op 08213, Appellate Division, Third Department

This appeal flows from Supreme Court’s granting the Ulster County Sheriff’s Employees Association’s  CPLR 7510 petition seeking to confirm an arbitration award.

The Association, in response to Ulster County’s changing the minimum qualifications for eligibility for the promotion examination to Assistant Warden by excluding correction sergeants* as eligible employees for the examination, had filed a contract grievance contending that this change by the county personnel officer violated the parties' collective bargaining agreement [CBA]. 

Ultimately the grievance was submitted to arbitration.

The question presented to the arbitrator: "Did the County violate the preamble and/or Article 5 of the CBA when it excluded [those serving in the] title of correction sergeant from being eligible to take the 2009 exam for Assistant Warden? If so, what shall be the remedy?"

The arbitrator found that the County violated the CBA “when it excluded correction sergeants from the eligible list” and, as the remedy,  

[1] Directed that the results of the 2009 exam be annulled;** and

[2] Directed that a new exam be given for which "correction sergeants with 36 months of permanent competitive class status would be eligible."

In sustaining the Supreme Court's confirming the arbitrator’s award, the Appellate Division applied the following guidelines:

1. In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role;

2. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice; and.

3. A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The court rejected the County’s argument that the arbitrator's award violated public policy and that it conflicted with the Civil Service Law because it “unduly interferes with the authority of the County's personnel officer to establish minimum qualifications for positions in the Sheriff's Department.”

The Appellate Division explained that an arbitration award may only be vacated on public policy grounds [1] "where a court can conclude, without engaging in any extended factfinding or legal analysis, that a law prohibits, in an absolute sense, the particular matters to be decided, or [2] that the award itself violates a well-defined constitutional, statutory or common law of this State" and [3] "judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement."

Noting that the County's personnel officer had the authority to establish minimum qualifications for promotion to job titles in county government, the Appellate Division said that it did not follow that such determinations are immune from oversight or review.

In this instance, said the court, the arbitrator determined that the change was made to increase the chances that two correction lieutenants who had been provisionally appointed as assistant wardens would ultimately receive permanent appointments to that position.

The court said the it agreed with the arbitrator’s conclusion that "[t]he decision to eliminate [c]orrection [s]ergeants from the pool of candidates [was] solely to increase the odds of the provisional candidates [being appointed permanently to the position] runs afoul of the competitive process envisioned by the Civil Service Law" and violated the State's constitutional provision requiring that civil service positions be filled "according to merit and fitness," citing Article V, §6, of the State Constitution.

* This change resulted in limiting eligibility for the promotion examination to correction lieutenants having at least 12 months of permanent service in the title.

** Presumably this directive resulted in the vacating of all permanent appointments made from the eligible list resulting from the 2009 examination for Assistant Warden.
The decision is posted on the Internet at:

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on:

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on


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