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September 04, 2013

Provisional appointment to a vacancy


Provisional appointment to a vacancy
CSEA v Bobenhausen, 69 AD2d 983

An individual not eligible for the promotion examination or open-competitive examination for a vacant position is selected to be provisionally appointed to the vacancy. Is such an appointment lawful?

In Turel v Delancy, 287 NY 15. the Court of Appeals said that the appointing authority is not required to select a person who is, or had previously been, on an eligible list for promotion to the position.

The Appellate Division in CSEA v Bobenhause, 69 AD2d 983, extended that option to include selecting someone for appointment to the vacancy “who is not qualified to take the promotion examination or open competitive examination for the position.”

Citing Koso v Greene, 260 N.Y. 491 and other decisions, the court explained that “nothing in subdivision 1 of §65 of the Civil Service Law that requires that a provisional appointee be fully qualified for permanent appointment or that he [or she] must be eligible to take the civil service test for the position before being provisionally appointed to it."

The court noted that the respondent, Frederick A Bobenhausen, had been  approved for the appointment by the State Department of Civil Service after a noncompetitive examination, i.e., after a review of his qualifications, and its determination that he was qualified to serve provisionally complied with the statute, his failure to meet existing eligibility requirements for permanent appointment notwithstanding. A provisional appointment, said the Appellate Division, is a stopgap occasioned by necessity "and the appointee is exempt from civil service requirements and protection.”

Civil Service Law §65, Provisional Appointments, provides: “1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination. Such non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.
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