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Transferring employees in the face of an eligible list for the vacancies held lawful

By Harvey Randall, Esq.

Transferring employees in the face of an eligible list for the vacancies held lawful
Matter of Kirmayer v State of New York Civil.Service Commission. 42 A.D.3d 848, Appeal dismissed, 9 N.Y.3d 955

David Kirmayer asked the Department of Civil Service to revoke the appointment of Raymond Toth. Toth had been appointed to the position of Chief of Data Processing Technical Services (CDPTS), a position allocated to salary grade M-3.

Kirmayer, a Manager of Data Processing Technical Services [MDPTS] SG-27, contended that Toth?s appointment violated the NY Constitution and Civil Service Law Sections 52 and 61. Kirmayer alleged that although he was ranked first, with eight others, on a competitive promotion examination list, and that Toth had been appointed CDPTS although he was not reachable for appointment from the list.

The Civil Service Department, however, determined that Toth had been transferred to the position of CDPTS in accordance with Section 54.6 of the Civil Service Law and thus the selection and appointment from the promotion list to fill the vacancy was not mandatory in this instance. The New York State Civil Service Commission sustained the Department?s determination.

In the course of his appeal to the Civil Service Commission, Kirmayer learned that three others individuals, John Christiansen Jr., Steven Struzinsky and Marie Huffman, had also been appointed to CDPTS positions via transfer rather than appointment from the eligible list and asked that these appointments also be revoked by the Department.

Based on the Commission?s findings in the Toth matter, the Department recommended, and the Commission agreed, not hear Kirmayer?s similar appeals concerning the ?transfer? appointments of Christiansen, Struzinsky and Huffman.

Kirmayer sued, seeking to nullify all of these appointments, alleging that they were actually promotions and were made in violation of his right to promotion based on merit and competitive examination.

Supreme Court dismissed Kirmayer?s petition, finding that the employees involved were qualified for transfers to the CDPTS positions and that these appointments did not violate Kirmayer?s statutory or constitutional rights. The Appellate Division sustained the lower court?s ruling.

The Appellate Division pointed out that Civil Service Law Section 52(6)(c) provides that:

Transfers shall be allowed between administrative positions in the same or related or collateral specialties which involve substantially equivalent tests or qualifications, subject to such conditions and limitations as the state civil service department may prescribe.

The Commission?s Rules [4 NCYRR 5.1[a][2])] define a transfer as?

The change, without further examination, of a permanent employee from a position under the jurisdiction of one appointing authority to a position under the jurisdiction of another appointing authority or to a position in a different title in the same or a higher salary grade under the jurisdiction of the same appointing authority

A transfer, however, may be made only if the position to which transfer is sought is at the same or substantially the same or a lower salary level than the position from which transfer is sought.

Here, said the Appellate Division, the Department?s determination that these appointments were transfers and not subject to examination was rational as:

The positions of MDPTS and CDPTS involve substantially equivalent qualifications.

The Department?s job description of a CDPTS states that the position performs the same functions as a MDPTS, but in a significantly larger organization, and the knowledge, skill and ability required for both positions are identical.

The salary levels of the M-3 position and the SG 29 position are relatively equal.

Accordingly, the Department?s determination concerning the qualifications, duties and respective salary levels of the two positions were within two salary grades and, therefore, substantially the same, satisfied the standards controlling transfers.

Full post as published by New York Public Personnel Law on April 16, 2008 (boomark / email).