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All About Provisional Employees in the Competitive Class of the Classified Service

All About Provisional Employees in the Competitive Class of the Classified Service

An individual may be appointed to a position in the Competitive Class in the Civil Service as a permanent employee,¹ a contingent permanent employee,² a temporary employee,³ as a provisional employee⁴or as a term appointee for a set period.⁵

This article will address a number of issues that may be encountered in considering employing individuals on a provisional basis such as the nomination and appointment process, the right of a provisional employee to permanent appointment, the termination of a provisional employee, collective bargaining considerations related to provisional appointments and similar matters.

An appointing authority⁶ may wish to make an appointment to a vacant position in the competitive class⁷for which there is no appropriate mandatory eligible list available.⁸ In such cases the appointing authority must nominate an individual for a non-competitive examination for appointment to the position as a provisional employee. The nomination for the provisional appointment is submitted to the responsible civil service agency – the State Department of Civil Service Department with respect to such an appointment to a position with the State as the employer and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service or the responsible personnel agency with respect to entities subject to the jurisdiction of a municipal civil service commission or personnel officer.

If the individual is certified as qualified after such non-competitive examination,⁹ he or she may be appointed provisionally to fill such vacancy until an appointment to the position can be made from an appropriate eligible list as required by law or an appropriate mandatory eligible list resulting from competitive examination.¹⁰

In any event, there are time limits on the duration of provisional appointments set out in law.¹¹ Although a provisional appointment is, as a matter of law, not to be for a period in excess of nine months, compliance with such a deadline has proven to be virtually impossible¹² and often long-term provisional appointments have proven to be the rule rather than the exception.¹³ This has resulted in court rulings indicating that a provisional appointment is a “stop-gap” method for filling a vacancy¹⁴ and the provisional appointee attains no right to be permanently appointed to the position by reason of having served in the position as a provisional appointee.¹⁵ This is true even if he or she should later become eligible for permanent appointment to the title from an appropriate eligible list.¹⁶

The following are among a number of long-term provisional employments that have resulted in litigation because the provisional incumbent claimed he or she had attained permanent status in the position.

The decisions illustrate the various terms, conditions and circumstances in which a provisional employee may obtain, or be denied, permanent status in the position upon his or her passing the appropriate examination.

In Haynes v. Chautauqua County¹⁷ the court held that being reachable for permanent appointment from the eligible list does not serve to give a long-term provisional employee any right to be selected for permanent appointment to the position.

Haynes, a provisional appointee, had been removed from the position about a month following the certification of the eligible list promulgated for the position and sued the appointing authority seeking reinstatement to the item as a permanent employee. The court held that passing the examination and being certified as eligible for permanent appointment does not give a provisional employee any special claim to being continued in the position. The court noted that §65.3¹⁸ of the Civil Service Law, providing for the termination of a provisional employee within two months of the date of the promulgation of the eligible list, controlled notwithstanding the fact that Haynes’ name was the first on the eligible list certified to the appointing authority.

In contrast, in LaSota v Green¹⁹ the Court of Appeals, reversing a lower court ruling, held that a long-term provisional employee did have a right to a permanent appointment to the position. The court explained that LaSota, a provisional for more than nine months and whose name was first on the eligible list, had obtained a permanent appointment by operation of law when he was retained in the position as a provisional following the establishment of the eligible list. 

The distinction between Haynes and LaSota: LaSota’s name was on an eligible list that was not a mandatory eligible list while in Haynes the list was a mandatory list as it consisted of more than three candidates interested in accepting appointment to the position.. 

Accordingly the LaSota court held that the provisions of Civil Service Law §65.4 rather than §65.3, controlled. 

The LaSota determination somewhat expands upon decision in Matter of Roulette.²⁰ In Roulett the court held that where a provisional employee, eligible for permanent appointment, was retained in the absence of a mandatory eligible list beyond the relevant probationary period for the position, he or she attained permanent appointment in the position by operation of law.

Becker v New York State Civil Service Commission.²¹ is a decision the provides yet another variation regarding the rights, if any, of a long-term provisional employee - the effect of retaining a provisional employee who is otherwise qualified for permanent appointment.

Earlier decisions such as Haynes had indicated that long-term provisional employees do not attain permanent appointment pursuant to §65.4 where there is a mandatory list and such persons may be removed from the position within 2 months of the date when the eligible list was established. In Becker the Court of Appeals held that the provisions of §65.4 of the Civil Service Law are to be strictly construed and apply only where there are fewer than three persons willing to accept the appointment left on the eligible list.

Becker had served as a provisional in a title since 1975. In 1981 she took and passed the competitive examination for the title but was reinstated to her lower grade permanent title after the eligible list had been promulgated. As she had been continued as a provisional employee for more than two months following the date on which the list was established, Becker claimed she had attained permanent status pursuant to §65.4 as she was one of the top three eligibles on the list.

Rejecting Becker’s argument, the court explained that a permanent appointment by operation of law pursuant to §65.4 results only when the provisional eligible for appointment is continued in the position after the eligible list is established and the list is not "mandatory" because there are fewer than three candidates interested in being appointed to the position. Although Becker had been retained in the position as a provisional employee for more than the two-month period set specified in §65.3,²² the appropriate eligible list certified for appointment to her position contains the names of three or more qualified individuals interested in being appointment to the item and thus her reliance on §65.4 was misplaced.

In any event, it is black letter law that a provisional appointment cannot ripen into a permanent appointment merely by the passage of time nor may a provisional employee claim a contractual right to continued employment in the position²³ unless he or she becomes qualified for permanent appointment and is selected for such an appointment or attains such status by operation of law.²⁴

Indeed, the courts have rejected efforts to override the merit and fitness provisions set out in Article V, §6 of the State Constitution through collective bargaining pursuant to the Taylor Law.²⁵

Article V, Section 6 of New York State’s Constitution mandates that appointments and promotions in the civil service of the State and its political subdivisions "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive."²⁶

An attempt to provide for converting a provisional appointment into a permanent appointment merely through the passage of time was considered in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit].²⁷

The relevant collective bargaining agreement [CBA] included the following provision:

"Section 6-1.0—Definition of Tenure - "Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.

"Section 6-1.1—Rights of Tenured Employees - "All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee's displacement by a candidate from an eligible list certified by the Civil Service Commission."

In effect, the CBA obviated the provisions of Article V, Section 6 and the provisions of the Civil Service Law adopted to effect “appointment and promotion” in the public service based on merit and fitness and, in effect, gave provisional and temporary employees subject to its provisions almost the same “permanent status” enjoyed by individuals appointed from a open-competitive or promotion eligible list upon their satisfactorily completion of their probationary period.

The Court of Appeals, noting that it “repeatedly held … that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy,” ruled that here CSEA’s grievance “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called "tenure" provisions of the CBA would violate the Civil Service Law and public policy.”

Further, noted the court, provisional appointments carry no expectation nor right of tenure. The court, citing Koso v Greene, 260 NY 491, said that provisional employees, while appointed to positions in the competitive class, are “exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]."

Again quoting from Koso, the Court of Appeals pointed out that “Such appointments ‘are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions’ and ‘[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.’”

The decision states that “CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months.” Accordingly, the City’s agreement providing superior rights to provisional employees holding positions beyond that statutory time period is a nullity.

The Court of Appeals conclusion: “the provisions under the CBA are unenforceable as a matter of law” as the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.

Provisional status was the critical element in another case, City of Plattsburgh v Local 788, 108 AD2d 1045 where in the issue concerned determining the right of an employee in a layoff situation.

The relevant collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.²⁸

For example, assume that Employee A was provisionally appointed on January 1, and that Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

When the City laid off employee A rather than employee B the Union grieved, contending that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, had to be laid off first.

The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union’s grievance to arbitration, holding that §80²⁹of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.³⁰

In some instances the Rules of a civil service commission may provide that: a provisional employee must be terminated after failing two examinations for the position. The court sustained the termination resulting from Steuben County Civil Service Commission invoking its “Two Examination Failure” Rule and refusing to approve the provisional employee’s continuation in the position.³¹

The Rule provided that no provisional employee who twice failed the test for the position would be given another provisional appointment unless the test failed to produce any qualified eligible or where the list was immediately exhausted. In this case the list consisted of four names, but one candidate refused appointment and a second withdrew his name from consideration.

The Commission successfully argued that further provisional appointment was not permitted because the examination did not fail to produce any qualified candidates and the list was not exhausted. Noting that a local civil service commission or personnel officer has the discretion to adopt such a Rule, the court suggested the employer, who “clearly was under no compulsion” to use the non-mandatory eligible list, would effect the purposes of the Constitution’s merit and fitness provision by appointing one of the two remaining eligibles on a provisional basis to the position or, in the alternative, the appointing authority could elect to make a permanent appointment from “two-name list.”

However, if a person whose name is on eligible list is appointed to the vacancy provisionally, applying the decision in Roulett,³² the individual selected would automatically attain permanent status if continued in service beyond the maximum probationary period otherwise required for the position.

The Roulette decision, however, would not apply in a “contingent permanent appointment”³³ situation as the court held in Matter of Snyder.³⁴

When the permanent incumbent of a position is placed on leave of absence for what is expected to be an extended period, the appointing authority often seeks to fill the position. Usually this results in a “temporary” appointment.³⁵ However, under State Civil Service Commission rules (similar rules have been promulgated by a number of municipal civil service commissions as well), if there is an appropriate eligible list available, the department or agency may elect to fill the position on a “contingent permanent” basis by selecting a person from the eligible list.

Such an appointment may prove to be of some importance as it provides the individual appointed on a contingent permanent basis with all of the rights of a permanent employee except the right to retain the position in the event the person on leave from the position returns to the position.

Snyder, had been “provisionally appointed” to a higher-level position, position A, when the permanent of position A was placed on leave of absence from the title upon his provisional appointment to a still higher-level position, position B. About two years later Snyder was reinstated to his permanent, lower grade, position. The permanent incumbent of Position A, however, continued to serve as a provisional employee in higher level position, position B.

Snyder sued, contending that he had become tenured in position A on a “contingent permanent” basis when he was continued in the title for more than nine months under color of §65.4 of the Civil Service Law.³⁶ He argued that he had attained such status automatically because he had been qualified to be appointed on a contingent permanent basis to Position A. As a result, he said, he could not be “demoted” except as a result of disciplinary action so long as the permanent incumbent of position A remained on leave of absence from the item.

However, the State Civil Service Commission, in interpreting its Rule concerning contingent permanent appointments, 4 NYCRR 4.11(a), had 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. In effect, the Commission said that making a contingent permanent appointment requires an affirmative act on the part of the appointing authority to effect such an appointment.

The Appellate Division agreed with the Commission, noting that the regulation uses the permissive word “may.” The Court said “[o]nce it is established that (Snyder’s) status was solely as a provisional appointee³⁷ and, therefore governed entirely by Civil Service Law §65, the conclusion becomes inescapable that it could not ripen into that of permanent appointment absent full, literal compliance with all of the conditions for converting a provisional appointment to a permanent one under Civil Service Law §65.4.”

As §65.4 applies only where an examination fails to produce a list adequate to fill all positions then held on a provisional basis or where such a list is exhausted immediately following its establishment, the majority concluded that Snyder could not have attained permanent (or contingent permanent) status as there was no examination or list in his case.
.

Sometimes a permanent employee is promoted to a higher level position in his or her field of promotion as a provisional employee. Should the appointing authority elect to reinstate the individual to his or her lower grade position, is he or she entitled to notice and hearing? This was the issue in Singletarly v NYC Dept. of Homeless Services.³⁸

In the Singletarly decision the court set out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,³⁹ ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.

Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination⁴⁰for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”⁴¹

However, as the court held in Lee v Albany-Schoharie-Schenectady-Saratoga Board. of Cooperative. Educational Services,⁴² should a permanent employee resign from his or her position in order to accept a provisional appointee in a different competitive class position, he or she retains no right to be reinstated to his or her former position.

Lee served in this new position as a provisional appointee for the next 12 years. After an audit of a number of BOCES position by the Albany County Civil Service Commission, BOCES was required to reclassify a number of positions, including the position in which Lee was then serving. Lee subsequently took the examination held for the position but she did not attain a passing score. The position was ultimately filled by BOCES “from a list of eligible persons who had passed the examination” and Lee was terminated from the position.

Lee filed a CPLR Article 78 petition seeking reinstatement to the title she had held as a provisional appointee with back pay or, in the alternative, reinstatement as a permanent appointee in her initial BOCES title, contending that her termination was arbitrary and capricious because there was a failure to comply with the certification requirements of Civil Service Law §22 and certain other civil service requirements in reclassifying her position. The Appellate Division dismissed Lee’s appeal, explaining that regardless of whether or not the reclassification was properly accomplished, Lee was not entitled to the relief she sought as it is undisputed that as a provisional employee she was subject to termination by BOCES "at any time without charges preferred, a statement of reasons given or a hearing held."

Selecting an individual for provisional appointment to a vacancy, however, does not require that the individual be eligible for the promotion examination or open-competitive examination for a vacant position.

In Turel v Delancy, 287 NY 15. the Court of Appeals said that the appointing authority is not required to select a person who is, or had previously been, on an eligible list for promotion to the position. In CSEA v Bobenhausen, 69 AD2d 983, the Appellate Division extended that option to include selecting someone for appointment to the vacancy “who is not qualified to take the promotion examination or open competitive examination for the position.”

Citing Koso v Greene, 260 N.Y. 491 and other decisions, the court explained that “nothing in subdivision 1 of §65 of the Civil Service Law that requires that a provisional appointee be fully qualified for permanent appointment or that he [or she] must be eligible to take the civil service test for the position before being provisionally appointed to it." The court noted that Bobenhausen, had been  approved for the appointment by the State Department of Civil Service after a noncompetitive examination, i.e., after a review of his qualifications, and its determination that he was qualified to serve provisionally complied with the statute, his failure to meet existing eligibility requirements for permanent appointment notwithstanding. A provisional appointment, said the Appellate Division, is a stopgap occasioned by necessity "and the appointee is exempt from civil service requirements and protection.”

Under certain circumstances an employee may become a provisional employee and ultimately a permanent employee “by operation of law.

§45 of the Civil Service Law treats with the status of employees of a private sector employer upon acquisition of private institution or enterprise by government and provides that the public entity may continue the employment of all officers or employees thereof deemed necessary, who shall have been in the employ of such private institution or enterprise for at least one year prior to such acquisition. The positions so held by such employees shall be in the non-competitive class, pending the classification or reclassification of such positions as hereinafter directed.

The state or municipal civil service commission having jurisdiction is to determine for which positions or class of positions competitive examinations are practicable and shall adopt rules classifying and reclassifying the positions. The then incumbents of such positions who are employed therein at the time of the acquisition of the private institution or enterprise and who were so employed for at least one year prior to such acquisition shall continue to hold their positions without further examination.

Another element to consider is the fact that the certification of the payroll by the civil service commission or department, or personnel officer is critical to lawfully paying an individual in the classified service. As the decision in Eldridge v Carmel Central School District. Board of Education⁴³ demonstrates, a civil service department and municipal commission has the authority to withhold certification "from an entire payroll or from any item or items therein."⁴⁴

The Appellate Division said that the allegations in the complaint were sufficient to establish that the School District “continued to pay and approve salary and compensation to the employee after the expiration of his provisional appointment and without proper certification of the payroll.

The Personnel Officer of Putnam County, who also serves as the Personnel Director for the Putnam County Personnel Department, sued the Carmel Central School District’s Board of Education to recover approximately $233,245 that were allegedly illegally paid by the School District to a provisional employee in the classified service that had been employed by the District without the certification required by the Civil Service Law §100.

Eldridge contended that the School District “illegally paid or authorized payment of salary or compensation to during the period February 10, 2006 through October 15, 2008, which payments Eldridge alleged were not properly certified as required by Civil Service Law §100(1)(a).

The Appellate Division rejected the School District’s argument notice that a person has been "promoted, transferred, assigned, reinstated or otherwise employed" in violation of the law was a condition precedent to an action to recover sums illegally paid under Civil Service Law §102(2). The Appellate Division also observed that “Contrary to the defendants' contention, an action commenced pursuant to Civil Service Law §102(2) is an action ‘to vindicate a public interest’ to which the notice of claim requirement in Education Law §3813(1) does not apply.”

  

As the court held in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit],⁴⁵ contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate controlling appointments in the public service.

The relevant collective bargaining agreement [CBA] included the following provision:

"Section 6-1.0—Definition of Tenure

"Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.

"Section 6-1.1—Rights of Tenured Employees

"All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee's displacement by a candidate from an eligible list certified by the Civil Service Commission."

In effect, the CBA obviated the provisions of Article V, Section 6 and the provisions of the Civil Service Law adopted to effect “appointment and promotion” in the public service based on merit and fitness⁴⁶ and, in effect, gave provisional and temporary employees subject to its provisions almost the same “permanent status” enjoyed by individuals appointed from a open-competitive or promotion eligible list upon their satisfactorily completion of their probationary period.

The City brought this action seeking to stay arbitration on public policy grounds. CSEA answered and cross-moved to compel arbitration.

Ultimately the Court of Appeals, noting that it “repeatedly held … that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy,” ruled that here CSEA’s grievance “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called "tenure" provisions of the CBA would violate the Civil Service Law and public policy.”

Further, noted the court, provisional appointments carry no expectation nor right of tenure. Citing Koso v Greene, 260 NY 491, the Court of Appeals explained that provisional employees, while appointed to positions in the competitive class, are “exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]."

Again quoting from Koso, the Court of Appeals pointed out that “Such appointments ‘are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions’ and ‘[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.’”

The decision states that “CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months.” Accordingly, the City’s agreement providing superior rights to provisional employees holding positions beyond that statutory time period is a nullity.

The Court of Appeals conclusion: “the provisions under the CBA are unenforceable as a matter of law” as the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator

One exception to the rule that a provisional employee may be terminated without notice and hearing is in a situation where the provisional employee has been terminated for “whistle blowing.”

One last observation concerning provisional employments.

In Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858, the court held that a provisional appointee covered by the State’s “Whistle Blower Law”

The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal that he alleged resulted from “whistle blowing.”

Civil Service Law §75-b, typically referred to as the “Whistle Blower Law,” defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”

According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Sisson’s superior]” and thus neither Sisson’s superior nor the department were entitled to summary judgment.
.

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¹  Civil Service Law §61.1

²  Civil Service Law §64.4

³  Generally Civil Service Law §64. A temporary appointment, which must be distinguished from a provisional appointment made pursuant to §65.1, may be made for a period not exceeding three months when the need for such service is important and urgent even in the face of an appropriate eligible list. A temporary appointment also may be made for a period exceeding three months under special circumstances set out in law. In contrast, the Civil Service Law permits provisional appointments to positions in the competitive class only when there is no eligible list available for filling a vacancy in the competitive class, and then only for a maximum period of nine months. Further, the statute requires that once a provisional employee has been in a position for one month, a civil service examination for the position must be scheduled and the provisional appointment to the position must end within two months of the date on which an appropriate eligible list is established.

⁴  Civil Service Law §65.1

⁵  See Civil Service Law §15.1(b)

⁶  Civil Service Law §2.9

⁷  Civil Service Law §44

⁸  The term “appropriate eligible list” includes a special militry list, a prefered list, a list resulting from a comptitive examination, a displacement list, a transfer list or similar lists.

⁹  The non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.

¹⁰  In the event an appropriate special military list, preferred list or a similar “mandatory” eligible list is promulgated while the position is being filled by a provisional appointee, if an individual on such a list is willing to accept appointment to the position, he or she must be appointed to the position or the position must revert to a “vacancy” and the provisional appointee terminated from the position. In Kerr v. Weisenberg, 65 AD2d 815 [1978], affd. 49 NY2d 870, the cour held that rights of an individual on a preferred elibible list are superior to those of a provisional employee.

¹¹  Civl Service Law §64.2.

¹²  §15.1 of the Civil Service Law [Laws of 1909, Chapter 15] provided that the duration of a provisional appointment was not to exceed six months.

               

¹³  Legislation has been adopted seeking to control “excess provisional appointments in the City of New York.” See Civil Service Law §65.59(c). [N.B. This provision is repealed effective December 31, 2014]

¹⁴  Application of Gaiser, 30 Misc2d 619 [1961], affd. 15 AD2d 793.

               

¹⁵  Russell v Hodges, 470 F2d 212, USCA, 2^nd Circuit, [1972]

¹⁶  Indeed, a provisional appointee may be terminated "at any time without charges preferred, a statement of reasons given or a hearing held" so long as such termination is not for an unlawful reason.

¹⁷  Haynes v. Chautauqua County, 55 NY2d 814

¹⁸  Civil Service Law §65.3, subject to certain considerations not here relevant, provides that “A provisional appointment to any position shall be terminated within two months following the establishment

¹⁹  LaSota v. Green, 53 NY2d 491

²⁰  40 AD2d 611

²¹  Becker v New York State Civil Service Commission, 61 NY2d 252 [1984].

²²  See Civil Service Law 65.2

²³  Russel v Hodges, 470 F2d 212, [1972, CA2]; Rohl v Jeacock, 289 AD 208; [1940], affd. 284 NY 660..

               

²⁴  Civil Service Law §65.4.

               

²⁵  Civil Service Law Article 14.

²⁶  The concept of selection based on merit and fitness is also applied in situations where it has been determined that a competitive examination is not "practicable." Section 42.1 of the Civil Service Law mandates that appointment to a classified civil service position [other than to positions in the exempt and labor classes] shall be made only "after such non-competitive examination as is prescribed by the State Civil Service Department or municipal commission having jurisdiction."

²⁷  8 NY3d 465

²⁸  §§80 and 80-a

²⁹  And, presumably, §80-a.

³⁰  Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

³¹  Matter of the Steuben County Civil Service Commission, 113 Misc 2d 570

³²  Roulett v Hempstead Civil Service Commission, 40 AD2d 611

³³  Civil Service Law §64.4

³⁴  Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981

³⁵  See, generally, §64 of the Civil Service Law

³⁶  The Department of Civil Service conceded that it did not expect to ever hold a competitive examination for position A. Reading Civil Servce Law §§52.6 and 65.4 together, Snyder contended that he was now tenured in position A on a contingent permanent basis.

³⁷  Actually it could be argued that Snyder served as a “temporary employee” rather than a provisional appointee as a provisional appointment may be made only in the event the position is y vacant [see Civil Service Law Section 65.1]. In Synder’s case the position in question was incmbered by a permanent employee on leave from the title to serve in a higher grade position as a provisional employee. 4 NYCRR 4.10 provides, in pertinent part, that “When a permanent competitive class employee is given a temporary provisional or trainee appointment or promotion to another competitive class position in the same department or agency … he [or she] shall be deemed to be on leave of absence from his [or her] permanent position for the period of his [or her] service under such temporary, provisional or trainee appointment or promotion.

³⁸  Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

³⁹  See Roulett v Hempstead Civil Service Commission, 40 AD2d 611

⁴⁰  Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.

⁴¹  This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights. Also, in Sisson v Lech, 266 AD2d 858, the Appellate Division held that a provisional employee is protected by the Whistle Blower Law, Civil Service Law §75-b.

⁴²  Matter of Lee v Albany-Schoharie-Schenectady-Saratoga Bd. of Coop. Educ. Servs., 2010 NY Slip Op 00629, Decided January 28, 2010, Appellate Division, Third Department

⁴³  Eldridge v Carmel Cent. School Dist. Bd. of Educ., 82 AD3d 1147

⁴⁴  See Civil Service Law §100[1][a]

⁴⁵  Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit], 8 NY3d 465,

⁴⁶  The concept of selection based on merit and fitness is also applied in situations where it has been determined that a competitive examination is not "practicable." Section 42.1 of the Civil Service Law mandates that appointment to a classified civil service position [other than to positions in the exempt and labor classes] shall be made only "after such non-competitive examination as is prescribed by the State Civil Service Department or municipal commission having jurisdiction."

The Freedom of Information Law does not require an agency to formulate a final determination in the event there is none in existence

The Freedom of Information Law does not require an agency to prepare a "final determination" in the event there is none in existence 
Correction Officers' Benevolent Assn. v New York City Dept. of Corr., 2018 NY Slip Op 00522, Appellate Division, First Department

Supreme Court denied the Correction Officers' Benevolent Association [COBA] petition to compel the New York City Department of Corrections [Corrections] to produce all information pertaining to Correction's decision not to promote the individual petitioners from Correction Officer to Correction Captain it sought in its Freedom of Information Law (FOIL) request.

The Appellate Division affirmed the lower court's ruling, explaining that Corrections had met  its burden of "articulating a particularized and specific justification for denying access" to the requested documents on the grounds that the documents were exempt from disclosure as nonfinal intra-agency materials that "are entirely advisory in nature and rendered only to aid the actual decision-maker[s]"

The court rejected COBA's argument that the requested documents are "effectively the final documents because there are no later documents providing reasons for the failures to promote, other than the conclusory notification letters that the candidates were passed over."

Noting that Corrections admitted that the decision makers considered the requested documents in determining whom to promote, it stated that no documents exist encapsulating the final decision, other than the notice it provided to COBA.

Finding that there was no statutory basis to look beyond Correction's representation the Appellate Division the Appellate Division, citing Kheel v Ravitch, 93 AD2d 422, 430 [1st Dept 1983], affd 62 NY2d 1, noted that FOIL does not require agencies "to formulate a final determination where none exists."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00522.htm

There is no public policy bar to arbitrating a grievance concerning compensation to be paid to employees performing duties that constitute "out-of-title" work

There is no public policy bar to arbitrating a grievance concerning compensation to be paid to employees performing duties that constitute "out-of-title" work

Matter of City of Watertown (Watertown Professional Firefighters' Assn. Local 191), 2018 NY Slip Op 00743, Appellate Division, Fourth Department

In its grievance and demand for arbitration, Watertown Professional Firefighters' Assn. Local 191 [Local 191] alleged that the City of Watertown [Watertown] violated the parties' collective bargaining agreement [CBA] with respect to the assignment and compensation of firefighters who performed out-of-title work as Acting Captains. Supreme Court denied Watertown's Article 75 petition to permanently stay the arbitration of Local 191's grievance.

The Appellate Division sustained Supreme Court's ruling, rejecting Watertown's claim that that arbitration of the grievance was contrary to public policy and, or, certain provisions of Watertown's City Charter with respect to the authority of the City Manager in such matters.

As a general proposition, said the court, arbitration of an out-of-title work dispute is not contrary to public policy, citing County of Rockland v Rockland County Unit of Rockland County Local of Civ. Serv. Empls. Assn., 74 AD2d 812, affd for reasons stated 53 NY2d 741]

Further, the Appellate Division opined that arbitration of the out-of-title work dispute was not inconsistent with the authority of the City Manager to approve expenditures of Watertown's funds or to act as administrative head of the Watertown Fire Department.

Concluding that the parties agreed to arbitrate contract grievances, the Appellate Division ruled that the dispute concerning out-of-title work "is reasonably related to the general subject matter of the CBA."

In so doing, the court rejected Watertown's argument that the arbitration of the out-of-title work grievance should be stayed because compensation for such work falls within the meaning of salary,' which is expressly excluded from the CBA's definition of grievance.'"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00743.htm

Summarily removing public officers and employees from their positions

Summarily removing public officers and employees from their positions

PHH Corporation v Consumer Financial Protection Bureau, USCA, District of Columbia Circuit, Docket #15-1177

Except in instances where the appointment and removal process of a public officer or employee is set by federal or state law, it is "black letter law" that the power of appointment implies the power of removal.[1]In such cases the individual is characterized as serving at the pleasure of the appointing authority and thus may be summarily terminated from his or her position, provided, however, such termination is not based on factors that would otherwise constitute unlawful discrimination on the part of the appointing authority or otherwise constitute a violation of the Constitution of the United States or a state's constitution or a federal or state law, rule or regulation. Indeed, some instances an officer or employee "serving at will" may be terminated because of his or her political affiliation.[2]

In the event a public officer or employee is appointed for a fixed term of office, may such an individual be summarily removed from his or her position by the appointing authority? Typically, such an officer or employee may only be removed for cause, after notice and hearing.[3]

In PHH Corp. v Consumer Financial Protection Bureau, the US Circuit Court, District of Columbia Circuit, concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. The Circuit Court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director[4]can be terminated by the President only for cause.

In a split-decision, the majority of the court held, in pertinent part, that:

1. "Congress established the independent CFPB to curb fraud and promote transparency in consumer loans, home mortgages, personal credit cards, and retail banking."[5] 

2. "The Supreme Court eighty years ago[6] sustained the constitutionality of the independent Federal Trade Commission, a consumer -protection financial regulator with powers analogous to those of the CFPB."

3. "In doing so, the Supreme Court approved the very means of independence Congress used here: protection of agency leadership from at-will removal by the President. The Court has since reaffirmed and built on that precedent, and Congress has embraced and relied on it in designing independent agencies . We follow that precedent here to hold that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause is consistent with Article II."

In the words of the Circuit Court of Appeals:

"Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause. We thus uphold Congress’s choice."   

As NYPPL noted that with respect to summarily terminating the Director of the Federal Bureau of Investigation, federal law provides that:

"(b) Effective with respect to any individual appointment by the Effective date ... after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years [emphasis supplied]. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section.". 

Removal of a public officer having a fixed term of office is not unknown in New York State. For example, §36 of the State's Public Officer Law provided for the removal of town, village, improvement district or fire district officer by court whereby:

"Any town, village, improvement district or fire district officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice."

Another example: §5.2 of the New York Civil Service Law provides that the New York State Civil Service Commission consists of three Commissioners appointed by the Governor, by and with the advice and consent of the State Senate, "not more than two of whom shall be adherents of the same political party."

The Governor designates one of the members of the Commission to be President of the Commission and "such member shall serve in the capacity of President during the pleasure of the governor." Although the President of the Commission serves in that capacity at the pleasure of the Governor, in the event he or she is removed from the position of President, he or she would revert to his or her position as a member of the Commission for the remainder of his or her six-year term of office.

In all probability the US Supreme Court will be asked to consider the Circuit Court's decision in PHH Corporation v Consumer Financial Protection Bureau.

The decision is posted on the Internet at:

https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf

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[1] Bruso v County of Clinton, 139 AD3d 1166; City Council of Mount Vernon v Batra, 82 AD3d 1224.

[2]Branti v Finkel, 445 US 507

[3]In some situations it may be possible to discontinue the services of an incumbent in the event he or she becomes mentally or physically unable to satisfactorily perform the duties of the position.

[4]The Director of the CFPB is appointed for a five year term of office

[5]See 12 U.S.C. §5481(12).

[6]Humphrey’s Executor v United States , 295 U.S. 602.