September 11, 2019

An appointing authority may, as a matter of discretion, elect not to fill a vacant position notwithstanding the availability of an appropriate eligible list for the position


After reviewing the duties and responsibilities of the position of stenographer then  held by Plaintiff, the County Civil Service Commission advised  the Appointing Authority that it had reclassified the position to senior stenographer. The Commission then certified the promotion list for senior stenographer to the Appointing Authority. Plaintiff's name was first on the list certified to the Appointing Authority.

The Appointing Authority returned the list to the Commission, indicating that "it would not be making an appointment to the position of senior stenographer at that time."*

Plaintiff sued, seeking a court order compelling the Appointing Authority to appoint her to the reclassified position, an action "sounding in mandamus."** Supreme Court never reached the merits of Plaintiff's claim as it dismissed her petition on the grounds that it was untimely. The Appellate Division affirmed the lower Court's ruling explaining  that although Plaintiff knew that Appointing Authority was not going to appoint her to the position of senior stenographer, she waited more than six months before commencing her CPLR Article 78 action.

The Court pointed out that "before commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal and the Statute of Limitation begins to run on the date of the refusal and expires four months later." A party, however, cannot delay in making his demand, thereby extending indefinitely the period during which he or she is required to take action. In this instance the Appellate Division decided that Plaintiff had not proceeded with sufficient promptness in making her demand and thus the doctrine of laches barred her from suing.***

Although Plaintiff's action was found untimely and thus not decided on the merits, as a general proposition an appointing authority cannot be required to fill a vacant position, even if there is an appropriate eligible list available. For example, in Porto v Town of Harrison, 100 AD2d 870, the Appellate Division said that an individual on an eligible list does not have a "presumptive right" to appointment." 

In the event a court or a civil service commission is confronted with an eligible's demand to be appointed to the vacancy sought, it will typically decline to act on the ground that it lacks the power to command an appointing authority to fill a vacancy, which is  a power vested in the appropriate appointing authority.

Indeed, the genesis of the modern "rule of three"  is the Court of Appeals' decision in People v Mosher, 163 NY 32 as prior to 1900 New York State civil service appointments from eligible lists were based on "the rule of one," also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission to the appointing authority. In 1900 "the rule of one" was struck down by the high court as unconstitutional. 

In Mosher the Court explained that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power."

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1 permits the appointing authority to select from among those attaining the highest scores on the eligible list and who are interested in the appointment. The rule of three was ruled valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.****

However, the so-called Rule of Three is not literally "the rule of three."


In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed "reachable for appointment." On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority may only select from among the "top 60" eligibles and may not consider either of the two lower scoring eligibles for the appointment.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept the position.

In contrast, the "rule of one" is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the preferred list willing to accept the appointment or keep the position vacant.

In addition, the Court of Appeals has concluded that no strong public policy prohibits an appointing authority from agreeing to be bound by a "rule of one" -- appointing the eligible standing highest on the list certified to fill the position -- in the course of collective bargaining where a probationary period must be successfully completed in order for the appointee to attain tenure in the position.

* Although the decision does not indicate Plaintiff's status following the reclassification of her former position, as public policy disfavors "reclassifying an individual out of a job" presumably Plaintiff was reassigned to another available stenographer position.

** A writ of mandamus is one of a number of "ancient writs" and was issued by a court to command the performance of an official or ministerial duty by a public officer or a lower court. A Writ of Prohibition is another of the "ancient writs." It is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal, typically on the grounds that the lower tribunal "lacked jurisdiction." Other "ancient writs" include the writ of injunction - a judicial order preventing a public official from performing an act. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

*** Laches results from the failure of a party to initiate action to enforce a claimed right before the expiration of the controlling statute of limitations.

**** See, also, Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981, a case involving an employee eligible for contingent permanent appointment to a temporarily vacant position did not attain such status as the result of his being  provisionally appointed to the temporary vacancy absent the appointing authority affirmatively designating the appointment as "contingent permanent." The Court of Appeals explained that said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so.

The decision is posted on the Internet at:

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