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."

 

 

School Districts Share ‘Lesson Plan’ for Boosting Cybersecurity

On August 22, 2022, GOVTECH reported that "K-12 school districts’ collections of student data, array of digital systems and limited defense budgets are just some of the factors that make them tempting targets for cyber attackers," citing speakers during a FedInsider panel on August 21, 2022. 

GOVTECH noted that "active threat monitoring, security awareness training, vetted cloud vendors and other strategies can help reduce the dangers." 

In the words of GOVTECH, "Valuable student data, many digital systems and devices frequently shuttled between homes and schools make K-12 districts vulnerable to cyber attack. But there are plenty of ways districts can armor up." 

Click here to READ MORE.

Webinars for the week of August 22, 2022 offered by Government Technology

Monday, August 22, 2022 | 1:00pm Eastern

How video and image analytics are driving smarter operations

Video and image analytics gives government agencies the ability to collect up-to-date information in the field without human labor and then respond proactively if action is needed. As a case in point, the state of Oklahoma has recently taken advantage of video and image analytics to notify drivers that they need vehicle insurance. This fascinating use case has allowed Oklahoma to increase the number of insured drivers on the road without the use of traffic stops or other assistance from law enforcement. Join Government Technology for a discussion on how video and image analytics can improve your agency’s operations.

Click here to Register to attend

 

Thursday, August 25, 2022| 1:00pm Eastern

How to De-Risk Major ERP Migration

Transforming legacy ERP systems – major initiatives related to finance, human capital, supply chain processes and other key functions – helps governments become more efficient and effective. But too many ERP migrations end in failure. With the right approach and the right solutions – including industry-leading practices like process mining – agencies can ensure successful ERP migrations. During this webinar you'll learn best practices and top strategies for a seamless, successful transformation of legacy ERP systems.

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Friday, August 26, 2022 | 2:00pm Eastern

Cloud-Based Data Interoperability: A Game-Changer for Emergency Communications

Recent research indicates emergency response leaders grapple with various challenges revolving around data on a regular basis. To overcome many of these hurdles, policies will have to be rethought, networks will have to be kept secure and staff will have to learn how to use new digital tools. This discussion will share steps you can take to achieve superior data interoperability and enable faster access to potentially life-saving information.

Click here to Register to attend

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact Jeremy Smith at jsmith@erepublic.com (916) 932-1402 direct

Audit sought by New York State Nurses Association Benefit Fund held within the scope of the Supreme Court's ruling in Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc.

New York State Nurses Association Benefit Fund [Fund] sought an audit of the Nyack Hospital’s [Hospital] payroll and wage records. The Hospital objected, claiming that the Fund had the authority to inspect only the payroll records of employees the Hospital identified as members of the collective bargaining unit. The federal district court held that the Fund was entitled to the records of all persons the Hospital identified as registered nurses but not to the records of any other employees.

The Second Circuit Court of Appeals reversed in part and affirm in part.* To the extent the district court granted the Hospital’s cross-motion for summary judgment and denied the Fund’s motion for summary judgment, the Circuit Court reverse. To the extent the district court granted the Fund’s motion for summary judgment and denied the Hospital’s cross-motion for summary judgment, the Circuit Court of Appeals affirmed the lower court's ruling. 

The Circuit Court held that the audit sought by the Fund was authorized by the Trust Agreement. Further, the Circuit Court opined that the Hospital did not present evidence that the audit constituted a breach of the Fund’s fiduciary duty within the meaning of ERISA. 

Accordingly, the Circuit Court concluded that the audit was within the scope of the Fund trustees’ authority under the United States Supreme Court’s decision inCentral States, Southeast and Southwest Areas Pension Fund v. Central Transport,Inc., 472 U.S. 559.

*Judge Carney dissented in part in a separate opinion. 

Click HEREto access the Second Circuit's decision.

 

Union leader's arguments with fellow School District personnel held to have been made in his capacity as a School District employee and thus not within the ambit of the First Amendment

Plaintiff [Union Leader], in this appeal of an adverse decision by a federal district court to the Second Circuit Court of Appeals, contends that his employer [School District] violated his First Amendment rights by retaliating against him for speech he claims to have made in his capacity as a union leader. 

However, the Second Circuit observed that in his complaint filed with the federal district-court Union Leader merely alleged that he had argued with "a School District mechanic – and later, a few School District officials" – over the frequency with which bus safety issues should be reported." Union Leader, however, did not allege that the School District’s existing policy permitted unsafe buses to remain on the roads, nor did he allege that daily reporting would improve public safety. Thus the court concluded that Union Leader's claims "suggest nothing more than a workplace dispute between School District employees about internal reporting protocols." 

The Circuit Court explaining that Union Leader did not plausibly allege that he spoke as a citizen or that he spoke on a matter of public concern thus being engaged "in speech protected under the First Amendment," affirmed the district court’s dismissal of Union Leader's complaint.* 

Although Union Leader argued that the School District"infringed his right to engage in speech protected by the First Amendment" the Circuit Court, citing Garcetti v. Ceballos, 547 U.S. 410. noted that “when public employees make statements pursuant to their official duties ... the Constitution does not insulate their communications from employer discipline.” In contrast, said the court, the First Amendment "protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern,” [Id. at 417]. 

The specific details provided in the Complaint suggest that Union Leader's arguments with fellow School District personnel were made in his capacity as a School District employee, not as a private citizen,  noting that the Second Circuit has expressly rejected any categorical rule “that when a person speaks in his capacity as a union member, he speaks as a private citizen,” citing Montero v. City of Yonkers, 890 F.3d 386. 

Concluding that Union Leader "failed to establish that he engaged in protected speech, he cannot make out a prima facie case of First Amendment retaliation," the court affirmed the district court’s dismissal of Union Leader's complaint. 

* Judge Rosemary S. Pooler dissenting in a separate opinion. 

Click HEREto access the Second Circuit's decision.