November 19, 2018

Right to an appointment


Right to an appointment
Mitchell v Board of Education, Appellate Division

From time to time an individual on a civil service eligible list will sue in an effort to obtain an appointment to a vacant position that the appointing authority has decided not to fill. Assuming that the appointing authority is acting in good faith, it is well settled that an appointing authority is not required to fill a vacant position even if a mandatory eligible list for the title exists. This was one of the issues involved in the Mitchell case.

Robert L. Mitchell was eligible and reachable for appointment as an Area Manager of School Maintenance. In fact he alleged that he was "next on the list" for  appointment to the title when the New York City Board of Education abolished two of its four area manager positions. The two positions apparently were vacant at the time they were abolished.

Mitchell sued, seeking a court order directing  his appointment to one of the two abolished positions. The Appellate Division dismissed his position, holding that Mitchell "has not demonstrated any entitlement to relief under the circumstances presented."

Here Mitchell had two problems. First, as the Appellate Division noted, even assuming that he was entitled to consideration for either of the two abolished area manager positions, he was not, as a matter of law, entitled to appointment to the title.

It is well settled that an appointing authority is not required to fill a position that is vacant simply because there is a mandatory, or preferred, eligible list for the title.

 As the Board of Education conceded, Mitchell was eligible for one of the two remaining area manager positions, should one become available prior to the expiration of the eligible list and it elected to fill it.

Further, selection for the appointment would be subject to the so-called "rule of three," Civil Service Law §61. Mitchell would not have any automatic right to selection for appointment merely because he was the highest ranking eligible on the list.

As another illustration as to why Mitchell had no right to an appointment as an area manager, assume that one of the two remaining area manager positions were to be abolished. Presumably a preferred list would be established as a result.

If the remaining area manager position were later to become vacant, clearly the individual on the preferred list would be certified for appointment first, notwithstanding the existence of any eligible list resulting from a competitive examination for the title, including the list on which Mitchell's name appeared.


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