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Friday, August 15, 2014

Contingent permanent appointments


Contingent permanent appointments
Cruz v New York State Unified Ct. Sys., 2014 NY Slip Op 05640, Appellate Division, Second Department

Two employees of the New York State Unified Court System and New York State Office of Court Administration, John Ferguson and Jocelyn Cruz, were removed from their positions of employment that they held pursuant to a “contingent permanent appointment."

Ferguson had received a notice that he was going to be displaced from his position and replaced by someone on a preferred list and reinstated to a lower-titled permanent position. Cruz had received a similar notice. Ferguson and Cruz brought an Article 78 action challenging their displacement from their contingent permanent positions.

The Appellate Division, noting that “The Chief Judge has plenary Constitutional authority over the administration of the UCS” said that Chief Judge had the authority to establish statewide standards and administrative policies concerning nonjudicial personnel, including job classifications and removal, provided that the standards and policies "shall be consistent with the civil service law."

As to contingent permanent appointments, the court explained that:

“Under the rules promulgated by the Chief Judge, positions left temporarily vacant by the leave of absence of the permanent incumbent may be filled on a contingent permanent basis, (see 22 NYCRR 25.24[a],[d]). When the permanent incumbent's encumbrance on the position, i.e., his or her right to return to that position, expires due to the attainment by the permanent incumbent of nonprobationary, permanent status in a higher title (see 22 NYCRR 25.22[d], 25.24[b][1]), the position then held by the contingent permanent appointee becomes permanently vacant and subject to being permanently filled pursuant to the Rules of the Chief Judge (see 22 NYCRR 25.24[b][8], 25.31[a][1]). The Rules of the Chief Judge require that such a permanent vacancy be filled first by reference to an applicable preferred list (see 22 NYCRR 25.24[c], 25.31[a][1]). The Chief Administrator of the Courts is required to establish statewide preferred lists of the names of those persons who have been demoted or suspended, including those who were demoted or suspended by virtue of a workforce reduction in June 2011 (see 22 NYCRR 25.31[a][1]).”*

If, said the court, ”no preferred list exists for a particular position, then any permanent vacancy in that position is to be filled in accordance with 22 NYCRR 25.24(b)(8), which provides for the selection 'of one of such employees of the promotion unit having such contingent permanent status in such position or a similar position,' provided that, if the eligible list from which the employee acquired the contingent permanent position is still in existence, the employee is then eligible for permanent appointment or promotion from such list.”

Accordingly, the Appellate Division ruled that "the contingent permanent appointments held by Ferguson and Cruz did not mature into permanent appointments by virtue of their completion of probation or the positions becoming unencumbered. Moreover, the use of statewide preferred lists to fill permanently vacant positions is not arbitrary and capricious, even where such use results in the displacement of contingent permanent appointees who were not themselves subject to the workforce reduction.”

The court found that UCS's actions with regard to Ferguson were in compliance with the Rules of the Chief Judge, as the expiration of the permanent incumbent's encumbrance created a permanent vacancy subject to being lawfully filled.

As to Cruz, the Appellate Division noted that UCS conceded that the termination notice had been sent to her in error "since the relevant employment position had not yet become unencumbered, and since application of the Rules of the Chief Judge might indeed result in her permanent appointment." Thus, said the court, Supreme Court properly granted that branch of the petition which was to annul the determination displacing Cruz from her position of employment but Supreme Court erred in permanently enjoining her displacement from the position as Cruz holds her position on a contingent permanent basis, explaining that the record reveals that, during the pendency of this proceeding, the position held by Cruz became unencumbered, and no preferred list exists for the position, “the position must be filled permanently from the existing regular eligible list, in accordance with 22 NYCRR 25.24(b)(8).”

The Rules of Civil Service Commission addressing contingent permanent appointments for employees in the Classified Service of the State as the employer differ from the Rules of the Chief Judge of the State of New York addressing contingent permanent appointments applicable to employees of the Office of Court Administration.

Typically a temporary appointment**is made to a position temporarily vacant or to a position that is not expected to be continued for any extended period of time as generally set out in subdivisions 1, 2 and 3 of  §64 of the Civil Service Law and except as authorized by subdivision 4 of. §64, a temporary appointment cannot mature into “tenure” status. 

Under the Commission’s Rules, however, in the event the appointing authority affirmatively designates the appointment of an individual to a temporary vacancy as a “contingent permanent appointment,” this  “special form of temporary appointment” provides the appointee with many of the benefits that flow from being permanently appointed to the position. 

To effect a permanent contingent appointment, (1) the appointing authority must specifically act to provide for such a “contingent permanent” appointment*** and (2) the appointee must otherwise satisfy the mandates of §61 of the Civil Service Law with respect to permanent appointment to a position in the Classified Service of the State as the employer. Further, a tenured employee may not be reassigned to an encumbered position "unless the employee agrees, in writing, to accept a contingent permanent appointment to such position.” A CPE attains tenure in the title upon his or her being continued in the position beyond maximum period of probation for the title.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, a temporary appointee, even if otherwise eligible for appointment as a contingent permanent employee [CPE] pursuant to Section 64.4, must be appointed specifically as a CPE by the appointing authority, “which status is granted solely at the discretion of the appointing authority and requires that the appointee otherwise satisfies the mandates of §61 of the Civil Service Law."

The New York State Department of Civil Service Career Mobility Office describes a contingent permanent appointment  as follows: “A permanent appointment or promotion to a position left temporarily vacant by the leave of absence of the permanent incumbent of the position; such appointees have the same rights as permanent appointees; a contingent permanent employee may be displaced by the return of the permanent incumbent. (The term contingent permanent is not used in the Civil Service Law or Rules; rather, rule 4.11 refers to "permanent appointments to encumbered positions.") .”

In the event a CPE is to be removed from his or her position upon the permanent incumbent of the position being filled by a CPE upon his or her reinstatement to the position, the CPE shall [1] displace any temporary or provisional employee serving in the same title and work location under the jurisdiction of the same appointing authority; or [2] displace the CPE with the most recent contingent permanent appointment date serving in the same title and work location under the jurisdiction of the same appointing authority or [3] the CPE is to be reinstated to the position from which he or she is on leave, if any, and his or her name is placed on the appropriate reemployment list or roster for the title he or she formerly held on a contingent permanent basis, as the case may be.:

A displaced CPE may request the Civil Service Department to restore his or her name to the eligible list or reemployment roster, if any, from which the contingent permanent appointment was made, if such list or roster is still in existence at the time the request if made.

If a position with same title and work location, and under the jurisdiction of the same appointing authority, becomes vacant, the CPE having the earliest date of contingent permanent appointment willing to accept such appointment is to be permanently appointed to the vacancy should the appointing authority elect to fill the vacancy.

Essentially the Commission’s Rules provide as follows with respect to the status of a CPE having tenure in the title:

1. The CPE may request that his or her name be restored to the eligible list or reemployment roster, if any, from which his or her contingent permanent appointment was made, if such list or roster is still in existence.

2. Should a position with same title and work location, and under the jurisdiction of the same appointing authority, becomes vacant, the CPE having the earliest date of contingent permanent appointment is to be permanently appointed to the vacancy in the event the appointing authority elects to fill the vacancy.

3. In the event the CPE is retained beyond the maximum period of probation set for the position, he or she attains tenure in the title and is subject to removal from the position as required by, and in accordance with, the Rules upon the reinstatement of the permanent incumbent to the position; the abolishment of the position in accordance with relevant provisions of the Civil Service Law; or terminated for cause in accordance with the controlling disciplinary procedure.




* Section 25.24 Contingent permanent appointments of the Rules of the Chief Judge,. is set out on the Internet at http://www.nycourts.gov/rules/chiefjudge/25.shtml#24   

** A temporary appointment is made to an encumbered position and is distinguished from a “provisional appointment” made pursuant to §65 of the Civil Service Law to a wholly vacant position.

*** As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, a temporary appointee, even if otherwise eligible for appointment as a contingent permanent employee [CPE] pursuant to Section 64.4, must be appointed specifically as a CPE by the appointing authority, “which status is granted solely at the discretion of the appointing authority and requires that the appointee otherwise satisfies the mandates of §61 of the Civil Service Law. 

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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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