Monday, July 10, 2017

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority


A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority
2017 NY Slip Op 04740, Appellate Division, Fourth Department

The employee [Petitioner] in this CPLR Article 78 proceeding sought a court order vacating the appointing authority's decision to reinstate her to her lower grade position, contending that she had been appointed to the higher grade position as a permanent or contingent permanent employee and thus was entitled to the procedural protections of Civil Service Law §75 as a condition precedent to her being returned to her lower grade position.

The Appellate Division ruled that Supreme Court had properly dismissed her petition as the record indicated that Petitioner had been given a "temporary appointment ... [to fill] a position that was encumbered by an employee on leave of absence."

Accordingly, there was nothing to support Petitioner's claim that she had been appointed to the higher grade position on a contingent permanent basis in the record.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, an employee, even if otherwise eligible for appointment as a contingent permanent employee pursuant to §64.4 of the Civil Service Law, must be specifically designated as being appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority.

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