Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules
2013 NY Slip Op 08085, Appellate Division, Second Department
The school district initially appointed Employee as a cleaner and later appointed him to the position of “custodial worker.” Subsequently the school district permanently appointed Employee to a higher level position, senior custodian, from an open-competitive eligible list. This appointment was subject to Employee’s satisfactory completion of a 12-month probationary period.
Before Employee had completed the 12-month probationary period the school district had "reason to believe" that Employee had engaged in certain improper conduct and terminated him from its employ.
Employee sued the school district, contending that, among other things, his termination was unlawful and that he was entitled, pursuant to the provisions of Civil Service Law §63(1), to return to his previous position of "custodial worker."
The Supreme Court, among other things, granted that branch of Employer’s petition that restored him to his former position, custodial worker, with back pay and benefits.
The Appellate Division sustained the Supreme Court’s decision, stating that it had “properly determined that [Employee’s] appointment as "senior custodian" was a "promotion," despite its having been made from the "open competitive" list rather than from the "promotional list."*
The Appellate Division explained that although the Civil Service Law does not expressly define "promotion," Civil Service Rule 10.1 of the local commission having jurisdiction provides that "[a]ny advancement of an employee from a position in one title to a position in another title having either greater responsibilities or for which a higher maximum rate of pay is prescribed, shall be deemed a promotion, and shall be made only in accordance with the provisions of the Civil Service Law and these rules. All vacancies in the competitive class shall be filled by promotion[s] as far as is practicable"
As Employee’s advancement from the position of "custodial worker" to "senior custodian" involved both greater responsibilities and carried a higher maximum rate of pay, the Appellate Division ruled that the advancement constituted a "promotion" within the meaning of the [responsible commission’s rules].
Observing that Employee had not been removed from his probationary employment pursuant to Civil Service Law §75, the Appellate Division said that the district should have reinstated him to his prior permanent position of custodial worker.
Thus, said the court, Employee’s termination “was made in violation of lawful procedure.”
* Civil Service Law §63(1) mandates that "[w]hen probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term” [emphasis supplied by the Appellate Division].
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_08085.htm.