Montero v. Lum

• Decision Date: 16 October 1986
• Parties: , 501 N.E.2d 5 In the Matter of Richard MONTERO, Appellant, v. John C. LUM, as Director of the Harlem Valley Center Division for Youth, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 397

508 N.Y.S.2d 397

68 N.Y.2d 253, 501 N.E.2d 5

In the Matter of Richard MONTERO, Appellant, v. John C. LUM, as Director of the Harlem Valley Center

Division for Youth, et al., Respondents.

Court of Appeals of New York.

Oct. 16, 1986.

Thomas D. Mahar, Jr., Poughkeepsie, for appellant

Robert Abrams, Atty. Gen. (Christopher Keith Hall, O. Peter Sherwood, Albany, Kent L. Mardon and J. Gardner Ryan, Poughkeepsie, of counsel), for respondents.

OPINION OF THE COURT

TITONE, Judge.

Following his termination without a hearing, petitioner commenced this article 78 proceeding seeking reinstatement to his former civil service position as a Youth Division Aide IV at the State Division for Youth Harlem Valley Secure Facility. The principal question presented in this proceeding is whether petitioner's period of probationary service should be deemed to have commenced on the date he actually began working as a designated "temporary" employee or instead when he subsequently passed the required qualifying examination and was awarded permanent status. Because we conclude that a nonexempt temporary employee cannot attain permanent status and begin serving the probationary term without having first qualified for the position, we hold that the Appellate Division correctly measured petitioner's probationary period from the date he passed his civil service examination.

Petitioner was initially appointed as a part-time Youth Division Aide IV, a noncompetitive position, on October 27, 1982. Effective November 8, 1982, he was appointed to the same position on a full-time basis. On both occasions, the personnel action forms signed by the Facility Director indicated that the appointments were "temporary". Petitioner actually began working for the agency on the date of his initial part-time appointment, although he had not yet taken and passed the required physical examination and agility test.

After some delay, those tests were scheduled to be conducted on January 13, 1983. Petitioner passed both tests and on March 24, 1983 was notified of his permanent appointment to the position of Youth Division Aide IV. The appointment was made effective January 13, 1983 and was subject to successful completion of a period of probationary service ending January 12, 1984.

During his employment at the Harlem Valley Secure Facility, petitioner's supervisors found his performance less than satisfactory because of his inability to "maintain a professional distance from the residents". As a result of his supervisors' final negative evaluation, petitioner was terminated, without a hearing, on January 6, 1984. The decision to terminate petitioner was made by James Clancy, who was acting as the Facility Director while John Lum, the appointed Director, was on vacation.

In May of 1984, petitioner commenced the present proceeding for reinstatement and back pay. ¹ He argued principally that his one-year probationary period had begun on October 27, 1982, the date of his initial appointment, and that having completed one year's probationary service on October 26, 1983, he could not thereafter be terminated without a hearing. He also argued that his termination was unauthorized because Clancy, the facility's Acting Director, had no power to remove him.

Special Term agreed in principle with petitioner's arguments, although it cited November 8, 1982, the date of petitioner's full-time appointment, as the point at which his probationary period commenced. Noting that the two-month and five-day delay in scheduling petitioner's tests was attributable solely to the employing agency, the court concluded that the agency should not be permitted to defer the effective date of petitioner's permanent appointment until he had passed the tests because to do so would, in effect, be to expand the one-year probationary period authorized by Civil Service Law § 63. In so ruling, the court found it significant that after petitioner had been hired the agency had recognized that Youth Division Aides were being "disadvantaged by the prolonged probationary status" occasioned by the need to schedule a qualifying physical examination and, as a consequence, had promulgated a prospective rule authorizing its personnel office to adjust the affected employees' probationary periods accordingly. ² Additionally, the court rejected respondents' contention that petitioner's status was temporary, rather than permanent, before he had passed the examination, since, in its view, respondents had not satisfactorily established that a valid temporary appointment was made within the meaning of Civil Service Law § 64. Consequently, Special Term found that by January 6, 1984 petitioner was a permanent, nonprobationary employee who could not be terminated without a hearing. Accordingly, the court ordered him reinstated with back pay. ³

On appeal to the Appellate Division, 115 A.D.2d 480, 495 N.Y.S.2d 713, the judgment awarding reinstatement and back pay was reversed and the petition dismissed. The Appellate Division concluded that petitioner could not have attained permanent status before January 13, 1983, the date he passed his qualifying examinations, and that his previous temporary appointment "could not have ripened into a permanent appointment by that time". Thus, the Appellate Division held, petitioner's probationary period had not begun until January 13, 1983, and the agency was within its rights when it terminated him without a hearing less than a year from that date. We agree.

Under Civil Service Law § 63(1), the State Civil Service Commission is authorized to provide for a period of probationary service, during which the employee may be summarily removed. The maximum probationary period for employees in petitioner's position is one year, and its commencement is triggered by the employee's "original permanent appointment" (4 NYCRR 4.5 see, Civil Service Law § 63). The problem that disturbed the trial court here was the possibility of an appointing authority arbitrarily expanding an employee's probationary period by first designating the employee temporary and then postponing the qualifying examination that would lead to "original permanent appointment". Whether such a problem may be remedied by relating an employee's permanent status back to his initial temporary appointment is the question we now address.

We begin, as we must, with N.Y. Constitution, article V, § 6, which furnishes the guiding principle for all civil service appointments. That provision states that "and promotions in the civil service of the state and all of the civil divisions thereof * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive". The purpose of this provision was to replace the spoils system with a system of merit selection and to protect the public as well as the individual employee (Wood v. City of New York, 274 N.Y. 155, 161, 8 N.E.2d 316; Matter of Social Investigator Eligibles Assn. v. Taylor, 268 N.Y. 233, 237, 197 N.E. 262).

Although the constitutional mandate expressed in article V, § 6 has been characterized as self-executing (see, People ex rel. McClelland v. Roberts, 148 N.Y. 360, 42 N.E. 1082), the Legislature has enacted a specific statutory scheme for its implementation. Under sections 44, 50 and 61 of the Civil Service Law, open competitive examinations must be held for "all positions for which it is practicable to determine the merit and fitness of applicants by competitive examination". Even in instances where a competitive examination is not "practicable", appointments to classified civil service positions outside the exempt and labor classes may be made only "after such non-competitive examination as is prescribed by the state civil service department or municipal commission having jurisdiction" (Civil Service Law § 42). The Legislature has also made provision for temporary appointments without examinations where the need is "urgent and important", but has expressly limited the duration of such appointments to three months, except in certain narrowly defined situations (Civil Service Law § 64). Such stringent limitations are necessary to ensure adherence to the clear constitutional preference for merit selection (see, Matter of O'Reilly v. Grumet, 308 N.Y. 351, 126 N.E.2d 275).

While it would have been preferable for respondents to have explained in the trial court why they had an "urgent and important" need to hire petitioner on a temporary basis, we need not consider here whether his temporary appointment, which lasted less than three months, was valid under section 64. Whether petitioner's initial appointment as a temporary was proper or improper, petitioner was not, and could not have been, appointed to a permanent position in the noncompetitive class, since he had not yet taken and passed the examinations prescribed for that position at the time of his initial appointment (see, Civil Service Law § 42 New York State Division for Youth, Change in Youth Division Aide Series Qualifications, Dec. 10, 1981). Indeed, because he had not passed the examination deemed "practicable" by the appointing authority, his permanent appointment would have violated article V, § 6 of the Constitution.

Furthermore, it is because of the inviolate constitutional mandate that we cannot by judicial fiat convert what was necessarily a temporary appointment into a permanent one (see, Amico v. Erie County Legislature, 36 A.D.2d 415, 424, 321 N.Y.S.2d 134, affd. 30 N.Y.2d 729, 332 N.Y.S.2d 898, 283 N.E.2d 769). It is well settled that even an unlawfully extended period of temporary service cannot ripen into a permanent appointment (e.g., Matter of Board of Educ. v. Nyquist, 31 N.Y.2d 468, 341 N.Y.S.2d 441, 293 N.E.2d 819; Matter of Hilsenrad v. Miller, 284 N.Y. 445, 31 N.E.2d 895; Matter of Agress v. Board of Educ., 86 A.D.2d 869, 447 N.Y.S.2d 305, affd. 57 N.Y.2d 755, 454 N.Y.S.2d 989, 440 N.E.2d...