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Certification of names from eligible lists

Certification of names from eligible lists

Referring to NYPPL summary concerning the distinction between mandatory eligible lists and non-mandatory eligible lists,* a reader asks: If an eligible list contains fewer than three names, may the appointing authority use ?a previous eligible list? that contains the names of at least three eligible candidates and appoint one of the three to the vacancy?

It may be possible to appoint an eligible whose name appears on an unexpired list, but only under certain, limited, circumstances.

First, the basic rule is that if the ?previous eligible list? has expired, the names of the candidates on the ?previous eligible list? cannot be certified for appointment to the vacancy. Deas v Levitt, 73 NY2d 525, holds that the "appointment of [an] individual from a constitutionally valid expired list violates Article V Section 6 of the Constitution.?

However, under certain circumstances the Civil Service Law authorizes using the names of candidates on earlier, existing eligible lists notwithstanding the promulgation of a successor eligible list.

§56 of the Civil Service Law provides that the duration of an eligible list ?shall be fixed at not less than one nor more than four years.? The section further provides that an eligible list that has been in existence for one year or more terminates upon the establishment of an appropriate new list, unless otherwise extended by the state civil service department or municipal commission having jurisdiction.**

Another relevant provision is §60 of the Civil Service Law, which addresses the certification of eligible lists and thus affects the eligibility of candidates on such lists for appointment.

§60 provides that in the event an eligible list has been in existence for less than one year and contains the names of less than three persons willing to accept appointment and a new list for the same position is established, the names of the persons remaining on the old list shall have preference in certification over the new list until such old list is one year old.

Further, §60 provides that during such period the names of candidates on the earlier list shall be certified along with enough names from the new list to provide the appointing officer with a sufficient number of eligibles from which selection for appointment may be made. In other words, the names of eligibles on the two lists may be combined in order to create a ?mandatory certification.?

On the other hand, in the event the ?old list? that has been in existence for one year or more and is continued upon the establishment of a new list and the new list contains less than three names, the civil service department or a municipal commission having jurisdiction may certify the names of eligibles on the old list along with enough names from the new list to provide the appointing officer with a sufficient number of eligibles from which selection for appointment may be made, again creating a ?mandatory certification.?

Some special cases involving the appointment of an individual whose name appeared on an ?expired eligible list? include:

Nominating an eligible for a ?non-competitive promotion examination? where there is no field for promotion and deeming the individual qualified for permanent appointment without further examination based on his or her having earlier qualified in a comparable competitive examination for the title; and

In the event an eligible list has expired and an applicant or eligible had been disqualified and such disqualification is then reversed, or the individual?s rank order on the eligible list is adjusted after the eligible list has expired, the individual?s name is to be placed on a special eligible list for a length of time equal to the restored period of time not to exceed a maximum of one year [see Civil Service Law Section 56.3].

* See http://publicpersonnellaw.blogspot.com/2009/05/difference-between-mandatory-list-and.html

** There is one significant exception, however, especially relevant in these times of budget difficulties. §56 permits eligible list to be extended if appointments from it are being restricted ?because of a financial emergency.?

Full post as published by New York Public Personnel Law on May 29, 2009 (boomark / email).