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Placement on a ?special military list? for appointment to a position in the competitive class following military service

Placement on a ?special military list? for appointment to a position in the competitive class following military service
Matter of Woods v New York City Dept. of Citywide Admin. Services, 2009 NY Slip Op 29199, Decided on May 11, 2009, Supreme Court, New York County, Justice Michael D. Stallman

The Wood case address a situation that may be faced by public employers with increasing frequency during the next several years as individuals are released from military service: the rights of such persons with respect to employment by the State or a political subdivision of the State when their eligibility and availability for appointment was interrupted by military service, including having their name placed on a ?special military list? for certification for appointment if the individual is able to satisfy all of the required terms and conditions for appointment.

Robert Wood took an open competitive civil service examination to become a firefighter with the New York City Fire Department. He passed the written test and his name was placed on the eligible list. Wood then enlisted in the United States Army. While Wood was serving in Iraq, the Department notified him that it intended to appoint him, but that he was required to submit to medical and psychological testing and have a background investigation.

Wood, however, was not due to be discharged from his military service until September 2008.

The Department was advised of the situation and indicated that Wood could complete these remaining parts of his examination after his discharge. Wood actually was ?qualified and certified? and but for his being in the military, he would have been selected and appointed to the position.

The key factor in the court?s ruling in this case: by the time Wood was honorably discharged from military service the relevant eligible list had expired.

Within 90 days of his release from duty Wood contacted the Department to take his medical and psychological examinations. The Department told Wood that he had passed all parts of the examination and that he would join the next training class scheduled for January 5, 2009.

Subsequently the Department rescinded Wood?s participation in ?the next training class.? It told Wood that ?notwithstanding its decision to re-activate his examination list number, Military Law §243, which safeguards civil service opportunities for persons serving in the military, did not apply to him because he did not complete his requisite military service until after May 5, 2008, the termination date [for certification of the eligible list] for all persons who took Exam No. 2043.?

Wood filed a petition pursuant to CPLR Article 78 seeking a court order overturning the Department?s action.

In adjudicating Wood petition, Justice Stallman said:

?This proceeding requires interpretation of two sections of the Military Law:

?Military Law §243(7), originally enacted in 1953, provides that ?[a]ny person whose name is on any eligible list shall, while in military duty, retain his rights and status on such list. If the name of any such person is reached for certification during his military duty, it shall be placed on a special eligibility list in the order of his original standing, provided he makes a request therefor following termination of his military duty and during the period of his eligibility on such list?? and

?Military Law § 243 (7-b) which provides that ?[a]ny person who has passed one or more of several parts of an examination for a position for which competitive examinations are required, and who has been prevented from taking or completing the remaining parts of the examination for such position by reason of his service in military duty shall be afforded an opportunity to take a comparable examination as to such remaining part or parts, provided he makes request therefor during the period of ninety days following termination of his military duty.??

The Department argued that in order for Military Law §243(7) to apply, ?the applicant must be completely qualified on the certification date and would be certified but for his military service. Under these circumstances, the applicant would be placed on the ?special eligibility list? for appointment after completing his military service.?

According to the Department, Military Law §243(7) applies to any person who seeks to be placed on a ?special eligibility list? who makes a timely request ?following the termination of his military service, and such request must be made during the period of his eligibility on the regular eligible list? [emphasis in the original].

Wood, on the other hand, contended that he was entitled to be placed on a special military list ?pursuant to Military Law §243(7-b)? and his name was to ?be certified before certification shall be made from a subsequent eligible list."

The court decided that Military Law §243(7-b) only applies to candidates ?who were otherwise qualified during the period for potential placement for persons on their regular eligibility list (determined by their examination date), but for their inability to take a portion of the exam because of military duty? to be placed on a special military list. The court concluded that Wood ?was not so qualified during the period of the regular eligibility list for Exam No. 2043.?

Justice Stallman said that subdivision 7-b ?refers only to the examination requirements for appointment.? If the candidate, on the date of certification, meets all the necessary requirements except for completing part of the requisite examinations, which he could have completed but for his military obligations, he or she is afforded an opportunity to take those remaining exams, provided he or she so requests within 90 days of his or her discharge from military service.

Although Wood was timely with respect to satisfying the medical and psychological examinations, Justice Stallman ruled that insofar as Wood was concerned, ?unfortunately, the period of the regular eligibility list had already expired.? Justice Stallman held that based on his reading to the relevant provisions of the Military law, ?it cannot be said that [the Fire Department?s] determination was arbitrary, capricious, contrary to law, or arrived at in bad faith,? and dismissed Wood?s petition.

NYPPL Comments: New York State Department of Civil Service Advisory Memo #04-03 applies to the State as an employer. With respect to the placement of the name of an eligible on a Special Military List, the Advisory Memo addresses two situations: one where the list is still in existence upon the individual's release from active duty and a second, where the eligible list has expired prior to the individual's release from active duty. The Memo explains:

?If a person?s score becomes reachable for certification from an eligible list during military duty, that eligible?s name will be placed on a special military list upon request following separation from military duty, provided the original eligible list is still in existence (Military Law §243.7)" [emphasis supplied]. As such an individual's "special military list" status is for two years, in such cases the individual would be eligible for appointment within that period notwithstanding the expiration of the eligible list during that two-year period.

The Advisory Memo then continues:

"A person who has competed in a comparable examination (Military Law §243.5) or has completed all parts of a prior examination following military duty (Military Law §243.7-b) is entitled to special military list status if his or her score was reached for appointment between the date of entrance into military duty and the date he or she is notified of passing the examination."

In contrast to the individual's release from military service while the eligible list is still in existence, here the Advisiory Memo presumably is addressing situations in which the relevant eligible list has expired.

In a Wood-type [Military Law §243.7-b] situation, it would appear that the individual, not having been eligible for appointment because he or she has not yet successfully completed all parts of the examination, is provided with an opportunity to so qualify and if successful, his or her name is to be placed on a Special Military List for a period of two years. Nothing in the Advisory Memo appears to suggest that the original eligible list must still be in existence to trigger the ultimately successful candidate's name being placed on a special military list pursuant to Military Law §243.7-b.

It would not be uncommon for an eligible list, be it the results of an open competitive examination or a promotion examination, to have expired while the candidate was performing his or her military service -- indeed such a result might be expected in view of the nature of the potential duration of the individual's active military service.

The courts have typically liberally interpreted statutes providing "remedial benefits" such as those set out in Military Law §243.7-b as a reflection of a legislative intent to recognize the sacrifice of an individual's civilian expectations as a result of his or her military service.

The Wood decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29199.htm

Full post as published by New York Public Personnel Law on May 18, 2009 (boomark / email).