August 23, 2022

Applying the Rule of Three in selecting an individual from an eligible list for appointment to a position in the competitve class

How many names must be certified for appointment from an eligible list established as the result of a competitive examination to a position in the Competitive Class?

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.

In 1900 the "rule of one" was struck down by the Court of Appeals as unconstitutional. The Court ruled 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" [People v Mosher, 163 NY 32].

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 the three candidates who stand highest on the eligible list and are interested in the appointment. The rule of three was held valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.

In applying the Rule of Three, tie scores allow the appointing authority to make its selection from among far more than three eligible candidates. 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 candidates 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 could only select from among the "top 60" eligible candidates and may not consider either [or both] of the two lower scoring candidates for the appointment "until the 60 name certification is exhausted," i.e. reduced to two names or to one name.

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 appointment to the position.

Although courts have ruled that a civil service commission cannot mandate a rule of one, the appointing authority itself may elect to be bound by such a rule. This has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise discretion with respect to selecting candidates for appointment. Such a truncation is typically the reflection of a term or condition set out in a Collective Bargaining Agreement or a Memorandum of Understanding negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law".

There is, however, a provision in the Civil Service Law addressing "preferred lists; certification and reinstatement therefrom" which mandates appointments in accordance with the "Rule of One". Subdivision 2 of Section 81 of said law provides, in pertinent part, that "the names of persons on a preferred list shall be certified therefrom for reinstatement to a vacancy in an appropriate position in the order of their original appointments [emphasis supplied]." Further, Subdivision 4 of Section 81 provides that "no person suspended or demoted prior to the completion of his probationary term shall be certified for reinstatement until the exhaustion of the preferred list of all other eligibles thereon" and upon such reinstatement, "such probationer shall be required to complete his probationary term."

 

 

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