January 9, 2018

Making an appointment to a position to take effect on a specified date in the future

Making an appointment to a position to take effect on a specified date in the future
Farrell v City of
Kingston, 2017 NY Slip Op 09214, Appellate Division, Third Department

In 2015, Shayne Gallo, the City of Kingston's then-Mayor, appointed Robert Farrell to the position of sergeant, effective January 10, 2016, and Kirk Strand to the position of lieutenant effective January 3, 2016.

On January 1, 2016, Steve Noble was sworn in as the City's new mayor and on January 2, 2016, the City's Police Citizens Advisory Board [PCAB] met and voted to rescind the Strand and Farrell appointments as invalid.

On January 9, 2016, Noble appointed three other officers, Richard Negron, Andrew Zell and Brian Lowe, as sergeants but did not make an appointment to the lieutenant position.*

In April 2016, Strand and Farrell [Petitioners] commenced this combined CPLR Article 78 proceeding and plenary action, contending, among other things, that the PCAB's rescission of their respective appointments should be vacated. Petitioners alleged that the Gallo  appointments should be deemed valid on the ground that Mayor was the appointing authority pursuant to the City of Kingston Charter and thus the PCAB  action was, in effect, ultra virus, without lawful authority, to rescind those appointments.**

Supreme Court granted the City's motion in its entirety, dismissing Petitioners' first three causes of action for failure to join certain necessary parties and dismissing Petitioners' employment discrimination cause of action for failure to file a notice of claim. Petitioners appealed.

Citing Morgan v de Blasio, 29 NY3d 559, the Appellate Division held that Supreme Court ruling that Negron, Zell, Lowe, Robertson and Burkert were necessary parties to the subject proceeding, explaining that  "any individual or entity who might be inequitably affected by a judgment in a proceeding, or who ought to be a party if complete relief is to be accorded between those who are parties to the proceeding, shall be named as a necessary party." The Appellate Division pointed out that were Farrell to obtain an annulment of the rescission of his appointment as sergeant and be reinstated to that position, either Negron, Zell or Lowe stand to be displaced from their promotion to sergeant.

By the same token, the Appellate Division opined that should Strand prevail with respect to his appointment to lieutenant and be reinstated to that position, Burkert and Roberston, as two of the top three candidates listed for promotion to the position of lieutenant "would lose their right to consideration for that post" and thus they are necessary parties with respect to an appointment to the position of lieutenant.

The Appellate Division also ruled that because Negron, Zell, Lowe, Robertson and Burkert are necessary parties and are subject to Supreme Court's jurisdiction insofar as they were employees of the City of Kingston Police Department at the time of commencement of this proceeding, the court should have ordered them joined and remitted the matter to Supreme Court to order Negron, Zell, Lowe, Robertson and Burkert to be joined as necessary parties.

It should be noted that [1] Robert Farrell was appointed to the position of sergeant effective January 10, 2016, and [2] Kirk Strand was appointed to the position of lieutenant effective January 3, 2016 and [3] that these Petitioners contend that City's Police Citizens Advisory Board's [PCAB] vote to rescind the Strand and Farrell appointments was invalid.

On February 9, 2016, Noble appointed three other officers, Richard Negron, Andrew Zell and Brian Lowe, as sergeants. Assuming that there were only three vacancies of Sergeant on February 9 and appointments to these vacancies were made prior to the effective date of Farrell's appointment, it could be argued that Farrell's appointment effective January 10 was rescinded by Noble's actions appointing  Negron, Zell and Lowe sergeants effective February 9.

In Remus v Tonawanda City School Dist., 277 A.D.2d 905, affirmed, 96 N.Y.2d 271, the court held that a Board of Education resolution that grants tenure to a teacher effective on a specified future date does not entitled the teacher to the benefits of tenure until the effective date specified in the resolution. See, also, Shaffer v Schenectady City School Dist., 96 N.Y.2d 271, to the same effect.

Strand's appointment to the position of lieutenant effective January 3, 2016, however,  raises a different issue.

If, as he contends, the City's Police Citizens Advisory Board's  [PCAB] vote to rescind his appointment was invalid, and Strand was otherwise eligible for permanent appointment to the position of lieutenant from the appropriate eligible list for Lieutenant, his appointment to the vacancy matured on January 3 as it appears that no valid substitute appointment to the position was made prior to January 3 by the appointing authority, nor was the appointment cancelled or withdrawn by the new mayor, Steve Noble.

Assuming, but not deciding, that such is the case, Strand was permanently appointed to the position of lieutenant subject to his satisfactory completion of any required probationary period effective January 3. If, on the other hand, Strand's appointment was initially made as a contingent permanent appointment, as a provisional appointment or as a temporary appointment by the former mayor, Shayne Gallo, Strand's appointment and  continuation in the lieutenant position would be controlled by the relevant provision or provisions of the Civil Service Law.

* Strand and two other officers, Brian Robertson and Anthony Burkert, were the only three officers on a certification of eligibles for appointment to the lieutenant position. However, although the appears to be a mandatory eligible list for appointment to the vacant lieutenant position, the appointing authority is not mandated to fill such a vacancy but only required to make an appointment to the vacancy from the eligible list if the position is to be filled absent other lawful appointment opportunities  for the appointing authority to appoint an eligible individual to the vacancy.

** Petitioners also alleged that they had been subjected unlawful discrimination within the meaning of Labor Law §201-d "for politically supporting Gallo."

The decision is posted on the Internet at:

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