Labor & Employment Law

Commissioner of Human Rights may not order employee?s permanent appointment

By Harvey Randall, Esq.

Commissioner of Human Rights may not order employee?s permanent appointment
Matter of Close v New York State Div. of Human Rights, 43 A.D.3d 574

James Close was employed in the title of Solid Waste Specialist II, SG-23, Department of Environmental Conservation. Close applied for ?a provisional appointment to Solid Waste Specialist III (grade 27),? only to subsequently learn that a ?female with significantly less educational qualifications and work experience? was selected for appointment to the position.

Close filed a complaint with State Division of Human Rights alleging that the Department had engaged in unlawful discriminatory practices by denying him the promotion based on his gender. Ultimately the Commissioner of Human Rights determined that Environmental Conservation had unlawfully discriminated against Close by denying him the promotion because on his gender. The Commissioner awarded Close back pay for ?the nine-month provisional appointment period,? Presumably the Commissioner provided for back pay for nine months in consideration of Civil Service Law Section 65.2 which provides that ?No provisional appointment shall continue for a period in excess of nine months? and mental anguish damages of $10,000. Close appealed, contending that the Commissioner?s order should have provided him with a permanent promotion and that his back pay should not have been limited to the ?nine-month provisional period.?

The Appellate Division succinctly disposed of Close?s contention that the Commissioner should have awarded him ?permanent appointment? by noting: ?The Commissioner?s broad remedial powers apply to public employers, but, as a general rule, the Commissioner cannot direct relief from public employers that would in effect deprive the appointing authority of the power of selection? in recognition of the appointing authority?s under the so-called ?rule-of-three? [Civil Service Law Section 61.1]. The Appellate Division observed that this ?general rule, is not absolute and, in narrow situations implicating compelling circumstances?, the Commissioner may direct action that infringes on some of the statutory discretion of a public employer since ?[t]he governmental policy against discrimination enjoys the highest statutory priority? In Matter of Beame v DeLeon, 87 NY2d 289, for example, although the Court of Appeals upheld retroactive seniority adjustments, it did not permit a promotion before establishing eligibility by competitive examination, since such action would be violative of New York?s Constitution.

There is another aspect of this case that should be considered. The parties appear to have characterizing the personnel transaction in this instance as a ?provisional appointment.? This is inaccurate in view of the statement in the Appellate Division?s decision that:

? the opening for the Solid Waste Specialist III (grade 27) position resulted from a provisional promotion of another person to a grade 31 position and that person reverted back to the grade 27 position when he failed to pass the Civil Service examination for the grade 31 position.

If this description of the status of the provisional SG-31 employee is correct, then only a temporary appointment [see Civil Service Law Section 64.1(a)] or a contingent permanent appointment [see Civil Service Law Section 64.4], rather than a provisional appointment [Civil Service Law Section 65], could have been made to ?the Solid Waste Specialist III (grade 27) position.?

This is because a ?provisional appointment? may be made only to a ?wholly vacant? position. In this instance, the SG-27 position was ?not wholly vacant? as the permanent incumbent was apparently on a leave of absence from the SG-27 position while serving as a provisional SG-31. Accordingly, the SG-27 position was not ?vacant? within the meaning of Section 65 thus barring making a provisional appointment to the SG-27 title.

On the other hand, assuming that a lawful provisional appointment could be made to the SG-27 Solid Waste Specialist III position, the court pointed out that:

Provisional appointments ? involve similar discretionary selection power of the appointing agency [in making a permanent appointment] since such [provisional] appointments carry ?no expectation of tenure and rights attendant thereto? ? and, in any event, only serve to fill a vacancy ?until a selection and appointment can be made after competitive examination,? citing Civil Service Law Section 65.1.

The same is true with respect to the discretion of the appointing authority in making a temporary or a contingent permanent appointment to an encumbered position. As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, a temporary appointee, even if otherwise eligible for such appointment pursuant to Section 64.4, must be appointed specifically as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority. A provisional appointment authorized by Civil Service Law Section 65, may, under certain conditions, mature into a permanent appointment by operation of law. Section 65.4 sets out the terms and conditions pursuant to which a provisional appointment matures into a permanent appointment. The various terms, conditions and circumstances under which such permanent status obtains to the benefit of a provisional appointee are explained in such decisions as Matter of Roulette, 40 AD2d 611, Haynes v Chautauqua County, 55 NY2d 814, Becker v New York State Civil Service Commission, 61 NY2d 252 and La Sota v Green, 53 NY2d 491.

Full post as published by New York Public Personnel Law on April 18, 2008 (boomark / email).