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Anticipating eligibility in promotion test

Anticipating eligibility in promotion test
Autorino v Westchester County Personnel Office, 547 NYS2d 394

Eligibility for competitive class promotion examinations usually requires that the candidate have completed a specified period of permanent service in a lower grade position [see Section 52,

Civil Service Law]. Sometimes the examination announcement indicates that persons who do not meet the announced service requirement will be allowed to compete in the examination "on an

anticipated eligibility" basis. If successful such persons are not certified for appointment until they have satisfied the minimum service requirement.

Autorino resolves a challenge by eligibles who met the service requirement at the time the examination was announced. They contested the admission of a number of candidates into an

examination on an "anticipated eligibility" basis. It appears that the Autorino complainants ranked sixth through eleventh on the list. Two of the candidates admitted on an anticipated eligibility basis ranked second and fifth, respectively.

Accordingly, the names of these two candidates would be certified ahead of those ranked sixth or lower once they met the announced service requirements. This could result in either, or both, of these eligibles being certified and appointed before those ranking sixth or lower on the list being certified for appointment. The Autorino candidates objected to the inclusion of those admitted into the test on the list on an anticipated eligibility basis as it diminished their opportunities for selection for promotion.

First the Appellate Division rejected the claim that "anticipated eligibility" violated the so-called Rule of Three [Section 61 of the Civil Service Law]. The Court said that the "Rule of Three" applies only to the certification of eligibles for appointment. It did not apply with respect to the

"preparation of an eligible list." The Appellate Division also said that "[i]t was reasonable for the [Personnel Office] to include on the eligible list candidates who lacked the necessary experience ... for appointment, since the examination was given only once every three or four years and it would have caused a hardship to have forced such candidates to wait for the next examination."

The decision notes that a civil service commission has the power to set different qualifications for taking the test and for appointment to the position. It then found that the Personnel Office "did not act arbitrarily or capriciously" in allowing candidates to be admitted into the examination on the basis of "anticipated eligibility" in this instance.

Autorino involved admitting candidates into an examination. In contrast, Quigley v Nassau County Civil Service Commission, 153 AD2d 892, concerns a decision by a civil service commission that excluded candidates from an examination. Nassau determined that Quigley and 16 other police officers did not meet the minimum experience qualification for promotion because they lacked "four years of 'permanent' service as a police officer."

In calculating the period of permanent service, the Commission excluded permanent service during the one-year probation period that each officer was required to serve. (The decision notes that

such probationary service was considered for other purposes such as eligibility for salary increments.) In support of its position, Nassau said that "this policy had been in effect for 20
years...."

The Appellate Division said that the Commission is allowed great discretion in their determination with respect to promotional qualifications, and if any "fair argument" can be made in support of the determination, the courts may not interfere, even if they disagree.

Full post as published by New York Public Personnel Law on May 27, 2008 (boomark / email).