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The difference between a mandatory list and a non-mandatory list

The difference between a mandatory list and a non-mandatory list
Wall v Town of Niskayuna, USDC, N.D.N.Y. 1-29-2009, 07-CV-350, decided May 22, 2009

One of the central issues in the Wall case* concerning the 2005 promotion of a police officer from Sergeant to Lieutenant was the allegation that the promotion was made from a civil service list that was invalid because it contained the names of only two candidates while three were needed to constitute a valid list.

Making a permanent appointment from an eligible list consisting of less than three names is lawful as such an appointment has been made from a valid eligible list. It is simply that a list containing the names of less than three persons interested in appointment to the position is not a mandatory eligible list.

Where there is a non-mandatory list in existence, the appointing authority may [1] select an individual whose name is on the list for permanent appointment to the position or [2] make a provisional appointment to the position or [3] elect to keep the position vacant.

In contrast, where there is a mandatory list available for appointment to the position, the appointing authority may either [1] appoint one of the three candidates receiving the highest scores permanently to the position or [2] elect to keep the position vacant.

In the event the appointing authority elects to make a provisional appointment when a non-mandatory eligible list is available, the appointing authority may either [1] provisionally appoint an individual whose name is on the eligible list or [2] provisionally appoint some other individual who meets the minimum qualifications for appointment to the position.

However, Civil Service Law Section 65.4 and case law provide that in the event the appointing authority appoints an individual whose name is on a non-mandatory list to the position as a provisional appointee, the provisional appointee will attain permanent status in the position if he or she is so retained for a period in excess of the probationary period for the position.

The various terms, conditions and circumstances under which such permanent status obtains to the benefit of a provisional appointee are considered 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.

* Police Sergeant Frances Wall alleged that she was not selected for promotion from Sergeant to Lieutenant because of her gender. The jury?s verdict: gender played no role in her not being selected for the promotion.

Full post as published by New York Public Personnel Law on May 27, 2009 (boomark / email).