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November 20, 2018

Challenging the provisional appointment of a co-worker


Challenging the provisional appointment of a co-worker
Kirmayer v State Civil Service Commission, 236 A.D.2d 705*   

May an employee challenge the provisional appointment of a coworker and if so, what standards must he or she meet to pursue the action? This was the central issue in Kirmayer v New York State Civil Service Commission.

David Kirmayer, a Computer Systems Programmer with the State Office of Mental Health [OMH], asked the Civil Service Department to revoke OMH's provisionally appointing Catherine Dryden as Supervisor of Revenue Operations. Kirmayer contended that Dryden's appointment violated §65.4 of the Civil Service Law.** When the Department of Civil Service refused to revoke Dryden's appointment, Kirmayer filed an Article 78 seeking to compel the revocation of her appointment.

A New York State Supreme Court judge dismissed Kirmayer's action on the grounds that he lacked standing to commence the proceeding. On appeal, the Appellate Division affirmed the Supreme Court's ruling.

The Appellate Division said that in order to challenge an administrative determination, Kirmayer had to show:

a. interest protected by statutory or constitutional provisions;

b. The administrative determination being challenged had a harmful effect on him; and

c. There was no clear legislative intent barring judicial review of the matter.

Kirmayer contended the appointment did hurt him, even though he made no claim that he was qualified for Dryden's position. Instead he contended that had an individual in his "promotional unit" been appointed as the provisional Supervisor of Revenue Operations, he could have applied for the vacancy created by the appointment.

The Appellate Division said that Kirmayer "so-called injury ... stemming from his purported inability to apply for an unspecified position that might have become vacant through the promotion of some unknown individual" constituted pure speculation.

In other words, the Court decided that Kirmayer "simply has not demonstrated the special type of damage necessary to confer standing for the purpose of pursuing the litigation."

* See, also, Kirmayer v State Civil Service Commission, 42 AD3d 848

** §65.4 generally bars "successive provisional appointments" to the same position. Presumably the approval of Dryden's provisional appointment by Civil Service was authorized under one or more of the exceptions allowed by §65.4.


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