Labor & Employment Law

A provisional employees right to a permanent appointment is limited

By Harvey Randall, Esq.

A provisional employees right to a permanent appointment is limited
In re Gilberto S. Gomez v Commissioner of the New York City Department of Juvenile Justice, 2008 NY Slip Op 03143, Decided on April 10, 2008, Appellate Division, First Department

State Supreme Court Justice Joan A. Madden, [New York County] denied Gilberto S. Gomez?s petition to annul his being denied a promotion to the position of Associate Juvenile Counselor (AJC) by New York City?s Department of Juvenile Justice. Gomez appealed, only to have his appeal unanimously rejected by the Appellate Division. Although Gomez has passed the competitive examination for the title, the court pointed out that ?A person whose name appears on a list of eligible candidates does not have a vested right to appointment.? Test scores, said the court, ?are not the sole determinant of fitness, as "the appointing authority must be cloaked with the power to choose a qualified appointee who possesses all the attributes necessary for the responsible performance of his duties.

Although arbitrary administrative decisions or decisions made in bad faith will not be tolerated, Gomez had a heavy burden of proof for which conclusory allegations and speculative assertions will not suffice. Further, the fact that an appointing authority failed to provide a particular reason for its declining to appoint a specific individual to a vacancy is evidence of arbitrariness or capriciousness. A candidate, such a Gomez, having a very good service record, still can be denied promotions provided appropriate discretion is used within the confines of the "one-of-three" rule in Civil Service Law §61.

On another point, the Appellate Division noted that although ?a provisional appointment may ripen into a permanent appointment pursuant to Civil Service Law §65(4),? that provision was not triggered in Gomez?s situation.

The classic cases addressing efforts by provisional employees eligible for permanent appointment to attain such an appointment include:

Russell v Hodges, 470 F2d 212 [a provisional appointment cannot ripen into a permanent one unless the individual is qualified for permanent appointment].

Roulette v Town of Hempstead, 40 AD2d 611 [In the event a provisional employee who becomes eligible for permanent appointment is continued in the position in excess of the maximum probationary period, he or she then enjoys permanent status in the title by operation of law [see Section 65.4, Civil Service Law]. This is true even if the eligible list is a nonmandatory list within the meaning of "rule of three."

Becker v Civil Service Commission, 61 NY2d 374 [Section 65.4 of the Civil Service Law is to be strictly construed and the section applies only where there are fewer than three persons willing to accept the appointment on the eligible list. In Becker the Court said that provisional employees do not attain permanent status, even if continued in the position for more than the two-month period set by 65.3, unless the list is "non-mandatory."

Matter of Haynes, 55 NY2d 814, a case involving the dismissal of a long-term provisional after the promulgation of the eligible list but before the statutory two-month period expired and Matter of LaSota, 53 NY2d 631, a case involving more vacancies than there were persons certified on the eligible list, which the Court said resulted in a "nonmandatory list situation."

In the Haynes case, the Court of Appeals ruled that where there is a mandatory list, the appointing authority may remove a person even if he or she has (a) served in excess of nine months as a provisional and (b) is serving as a provisional when the eligible list is certified and even if the provisional employee is one of the top three eligibles for the single vacancy to be filled.

In LaSota's case the Court said that a provisional employees could not be removed from his or her position even during the two-month "window period" referred to in the Haynes because there were more vacancies than eligibles on the list ? in effect, the list was a "nonmandatory list."

Snyder v Civil Service Commission, 72 NY2d 981. In the Snyder case the Court of Appeals considered the impact of Section 65.4 on a contingent permanent appointment [see Section 64.4, Civil Service Law]. The decision illustrates the differences between various types of appointments and the rights, or lack of rights, that result. Snyder had been "officially" reported as having been "provisionally" appointed to a higher-level title. The permanent incumbent was on leave of absence without pay from the position. About two years later Snyder's "provisional appointment" was rescinded and he was reinstated to his permanent title in a lower grade. The individual on leave from the higher-level position, however, had not returned to the position. Snyder, in reality, held a temporary appointment to the higher-level title while it was encumbered, a point that was to prove critical in the decision by the Court of Appeals. The Court ruled against Snyder, pointing out that Snyder had been appointed to the higher-level position as a "temporary" employee rather than as a provisional employee. This disposed of the "automatic promotion issue," as, according to the Court, Section 65.4 is not relevant in "temporary appointment" situations.

Section 65 provides for "filling a vacancy" in the competitive class when no eligible list is available. Section 64 of the Civil Service Law, in contrast, authorizes a temporary appointment for up to three months without regard to any eligible list, except that "when an employee is on leave of absence a temporary appointment ... may be made (to that position) for a period not exceeding the authorized duration of such leave...."

While temporary appointments may be made to "encumbered positions" for the duration of the absence of the incumbent, there is one situation in which a temporary appointment may be made to a wholly vacant position -- when the position is expected to be abolished in the near future. In some instances the temporary appointments must be made from an eligible list, if available.

These several rulings may be summarized as follows:

Where there is a nonmandatory list, a provisional appointee attains tenure if he or she is continued as a provisional when otherwise eligible and reachable for permanent appointment within the meaning of 61 of the Civil Service Law (or is reappointed to the position) for a period equal to or greater than the required probationary period after becoming eligible and qualified for appointment to the position on a permanent basis. In such a situation it seems that the provisional need not have even served as a provisional for nine months. The only requirement is that a provisional "complete the required probationary period" after having been otherwise fully qualified for permanent appointment.

Full post as published by New York Public Personnel Law on April 17, 2008 (boomark / email).