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April 21, 2014

Temporary appointments


Temporary appointments
130 A.D.2d 72, affirmed 72 N.Y.2d 986

§64.3 of the Civil Service Law provides that “Notwithstanding the provisions of subdivisions one and two of this section, the civil service department or municipal commission having jurisdiction may authorize a temporary appointment, without examination, when the person appointed will render professional, scientific, technical or other expert services (1) on an occasional basis or (2) on a full-time or regular part-time basis in a temporary position established to conduct a special study or project for a period not exceeding eighteen months. Such appointment may be authorized only in a case where, because of the nature of the services to be rendered and the temporary or occasional character of such services, it would not be practicable to hold an examination of any kind.”

However, §64.2, which provides for “Temporary appointments from eligible lists,” states that ”A temporary appointment for a period not exceeding three months may be made without regard to existing eligible lists. A temporary appointment for a period exceeding three months but not exceeding six months may be by the selection of a person from an appropriate eligible list, if available, without regard to the relative standing of such person on such list. Any further temporary appointment beyond such six month period or any temporary appointment originally made for a period exceeding six months shall be made by the selection of an appointee from among those graded highest on an appropriate eligible list, if available.”

When Suffolk County dismissed its consulting firm supervising the construction of a sewer project, the State and Federal governments threatened to cut off funds unless the County provided for the required supervision of the project.

Relying on §64.3 of the Civil Service Law, which provides for temporary appointments without examination, the County hired an inspection staff without making such appointments from available eligible lists. The Court found that such lists could have been used for the appointments.

Holding that exceptions to the general civil service policy of filling vacancies in the classified service from appropriate eligible lists is to be strictly construed, the court declared the §64.3 appointments unlawful.

Although §64.3 permits appointments without the use of eligible lists, such appointments are authorized only in exceptional cases. Significantly, the provision requires that it would not be practical to hold an examination of any kind to fill the vacancy. The court's finding that suitable eligible lists were already available proved to be a critical consideration as it obviated any argument that it would not be practical to hold such tests.
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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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