Labor & Employment Law

The rule of three

By Harvey Randall, Esq.

The rule of three

Hatala v McCaul, App. Div., First Dept., 253 A.D.2d 666, Motion for leave to appeal denied, 93 N.Y.2d 809

Although Terry J. Hatala scored higher than a number of other applicants in a written test for promotion to Supervising Bank Examiner, he was passed over because he ?did not do as well as other eligible job aspirants in the evaluative interview conducted by the Banking Department?s promotion committee.?

The Appellate Division rejected Hatala?s challenged to the process used by the Department to make its promotion determination. The Court concluded that the Department?s use of an interview to determine which of the three then eligible candidates for promotion should in fact be promoted? was consistent with Section 61.1 of the Civil Service Law -- generally referred to as the rule of three. According to the decision, Section 61.1 ?affords a State agency broad discretion to adopt procedures to determine a candidate?s merit and fitness for employment? and an appointing authority may adopt and use such procedures after an eligible list has been promulgated and candidates certified for appointment.

Hatala also claimed that the interview procedure violated his right to ?Equal Protection.? The Appellate Division rejected his argument, holding that the department?s use of an interview process to make its promotion selection involved a contemporaneous evaluation of all candidates for the promotion and thus they all ?were subjected to the same evaluative process.?

Full post as published by New York Public Personnel Law on January 15, 2008 (boomark / email).