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Friday, October 18, 2013

Contingent permanent appointment not automatic

Contingent permanent appointment not automatic
Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981

When the permanent incumbent of a position is placed on leave of absence for what is expected to be an extended period, the appointing authority often seeks to fill the position. Usually this results in a “temporary” appointment. However, under State Civil Service Commission rules (similar rules have been promulgated by a number of municipal civil service commissions as well), if there is an appropriate eligible list available, the department or agency may elect to fill the position on a “contingent permanent” basis by selecting a person from the eligible list.

Such an appointment may prove to be of some importance as it provides the individual appointed on a contingent permanent basis with all of the rights of a permanent employee, except the right to retain the position in the event the person on leave from the position returns to the position.

Snyder, an Associate Attorney, had been “provisionally appointed” to the title Supervising Attorney, a higher-level position. The supervising attorney position had become available when the permanent Supervising Attorney was placed on leave of absence from the title upon his temporary appointment to a higher-level position – Principal Attorney. About two years later Snyder was reinstated to his permanent, lower grade, Associate Attorney position. The permanent incumbent of the Supervising Attorney position, however, continued to serve “temporarily” in the Principal Attorney position, still on leave from the supervising attorney position.

Snyder sued, arguing that he had become tenured in the supervising attorney position on a “contingent permanent” basis when he was continued in the title for more than nine months. He claimed that he had attained such status automatically solely because he had been qualified to be appointed on a contingent permanent basis. As a result, he said, he could not be “demoted” except as a result of disciplinary action so long as the permanent incumbent of the Supervising Attorney remained on leave of absence from the  position.

Snyder based his claim of tenure on a contingent permanent basis on the fact that the supervising attorney title to which he had been appointed had always been filled by non-competitive promotion from associate attorney in accordance with “§52.6” of the Civil Service Law. As he had been appointed as a permanent Associate Attorney, he contended that his advancement to the supervising attorney position during the leave of absence of the permanent incumbent could only have been effected on a continent permanent basis.

The Department of Civil Service conceded this procedure had been followed in the past and that it did not expect to ever hold a competitive examination for the Supervising Attorney title. Reading §§52.6 and 65.4 together, Snyder contended that he was now tenured in the supervising title on a contingent permanent basis.

§65.4 provides if a person whose name is on an appropriate, nonmandatory eligible list is provisionally appointed to a vacancy, or is continued in such a position on a provisional basis beyond the maximum period of probation, is deemed to have been permanently appointed to the position.

The Commission, in interpreting its Rule concerning contingent permanent appointments, 4 NYCRR 4.11(a), said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so. 4 NYCRR §4.11 provides that “a position in state service left temporarily vacant by the leave of absence may be filled on a permanent basis....” In effect, the Commission said that making a contingent permanent appointment requires an affirmative act on the part of the appointing authority to effect such an appointment.

The Appellate Division agreed with the Commission, rejecting Snyder’s theory that §65.4 applied in his case.

Noting that the regulation uses the permissive word “may,” the majority ruled that appointments to temporarily vacant positions do not have to be permanent. The Court said “[o]nce it is established that (Snyder’s) status was solely as a provisional appointee and, therefore governed entirely by Civil Service Law §65, the conclusion becomes inescapable that it could not ripen into that of permanent appointment absent full, literal compliance with all of the conditions for converting a provisional appointment to a permanent one under Civil Service Law §65.4.”

As §65.4 applies only where an examination fails to produce a list adequate to fill all positions then held on a provisional basis or where such a list is exhausted immediately following its establishment, the majority concluded that Snyder could not have attained permanent (or contingent permanent) status as there was no examination or list in his case.

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