Matter of Roberts v City of New York

[*1] Matter of Roberts v City of New York 2006 NY Slip Op 52200(U) [13 Misc 3d 1240(A)] Decided on October 20, 2006 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 20, 2006
Supreme Court, New York County

In the Matter of the Application of Lillian Roberts, as Executive Director of District Council 37, American Federation of State, County and Municipal Employees, Afl-cio; Louis Sbar, as President of Local 299 of District Council 37, AFSCME, AFL-CIO; Brent Shaw; Keith Reid; and Nathan Moore on behalf of themselves and others similarly situated, Petitioners,

against

City of New York (Michael R. Bloomberg, as Mayor); New York City Department of Citywide Administrative Services (Martha K. Hirst, Commissioner); New York City Department Of Parks and Recreation(Adrian Benepe, Commissioner)New York City Department For the Homeless (Linda Gibbs, as Commissioner); New York City Department of Juvenile Justice (Neil Hernandez, as Commissioner), Respondents.



101422/06

Walter B. Tolub, J.

By this motion Petitioners seek: (1)a declaration that Respondents' employment of provisional Recreation Directors for periods in excess of nine months is invalid; (2)a declaration that Respondents' employment of provisional employees in the competitive class title of Recreation Director despite an eligibility list is invalid; (3)an order directing Respondents to terminate provisional appointments in the titles listed herein and replace them with appointees from eligibility lists; (4)an order enjoining Respondents from allowing the pending eligibility lists to expire; and (5)an order enjoining Respondents from appointing any person other than an eligible person on list 3049 [*2]to vacancies in the Recreation Director title.[FN1]

This Article 78 proceeding was brought to challenge the employment of Recreation Directors working in a provisional capacity at the New York City Department of Parks and Recreation(DPR). Petitioners claim that on May 12, 2004 the Department of Citywide Administrative Services (DCAS) established, an eligibility list for the title Recreation Director and that DPR continues to employ provisionals after the establishment of said list. Petitioners also claim that there are Recreation Directors employed by DPR in a seasonal capacity and that these seasonal employees are actually provisional employees as they have been serving in an almost year round capacity.

Respondents claim that as of November 22, 2004 DPR appointed fifty-two (52) certified eligibles from the list and that there are no individuals serving provisionally in the title of Recreational Director (RD) at DPR. Respondents further argue that they hired nine temporary employees to fill leave of absence lines in RDs title that were temporarily left vacant by the RDs. Petitioners claim that these permanent RD positions were left vacant by appointed RDs who are on leave from their civil service title indefinitely. Lastly, Respondents argue that the claims regarding the use of seasonal RDs at DPR must be dismissed as the two seasonal RDs were in conformance with the Personnel Rules and Regulations of the City of New York. Furthermore, Respondents argue that seasonal RDs employed by DPR will be or have been returned to their permanent civil service position and as such the seasonal employee issue is moot and should be dismissed.

Discussion

Article V, Section 6 of the New York State Constitution mandates that appointments and promotions in the Civil Service be made according to merit and fitness to be ascertained, as far as practicable, by examination which shall be competitive. The mandates of the State Constitution are executed through the statutes established by the Civil Service Law. The statutory scheme provided in the Civil Service Law is that competitive class positions are filled by competitive examination unless a determination has been made, by statute or rule of the appropriate civil service commission, that a competitive examination is not practicable. Examinations for vacant positions in the competitive class are administered in accordance with Civil Service Law (CSL) §50, and eligible lists established [*3]through the exams remain in effect until exhausted or for periods of time specified in CSL §56. Appointments to positions in the competitive class must be made by selection of persons certified by the appropriate civil service commission on the basis of the person's standing on the eligible list within the guidelines provided in CSL §61.

The CSL recognizes that there may be times when there is no appropriate eligible list available for filling a vacancy in the competitive class. CSL §65 provides that, in the absence of a list, a municipal civil service commission may certify applicants to provisionally fill vacancies until selections and appointments can be made after a competitive examination. The provisional appointments are to be made on a non-competitive basis. CSL §65(2) places time limits on the provisional appointments. More specifically, CSL §65(2) provides that:

No provisional appointment shall continue for a period in excess of nine months. The civil service department shall for competitive positions within its jurisdiction, and municipal civil service commission shall for competitive positions within it jurisdiction, order a civil service examination for any position held by provisional appointment for a period of one month and such department of commission shall conduct a civil service examination, or see that such an examination is conducted, as soon as practicable thereafter, in order to prevent the provisional appointment from continuing for a period in excess of nine months.Petitioners claim that despite these provisions, the DPR continues to employ provisional employees, in excess of nine months, despite the existence of competitive list 3049 from which eligibles should be appointed.

Respondents contend that since November 24, 2004 there have not been RDs serving in a provisional capacity at DPR. DPR claims that once the exam list 3049 was certified by the DCAS, DPR appointed 53 people for the RD positions. These appointments were characterized as "probable permanent" because they were subject to satisfactory completion of the mandated probationary period required by law of all open competitive appointments. However, there are at least nine individuals that Petitioners claim are provisional RDs while Respondent categorizes them as temporary appointments made pursuant to CSL §64(1)(a) and in violation of CSL §65.

Section 64 of the Civil Service Law provides in part that temporary appointments may be made for a period not exceeding three months when the need for such service is important and urgent. A temporary appointment may be may for a period exceeding three months under limited circumstances, including when an employee is on leave of absence from his position. In that instance, a temporary appointment to that position may be made for a period not exceeding the authorized duration of such [*4]leave of absence as prescribed by statute or rule.

Petitioners claim that the temporary appointments are made for people who are on permanent leave lines and that the temporary appointments are filling in for people who have been serving provisionally in another capacity well beyond the nine months permitted by statute. For example, Troy Basso has been serving in the RD position since March 3, 2001 on the leave line for Christine Bilardi who has been serving as a provisional Recreation Supervisor since June 28, 1997. Respondents have not held an examination for the title Recreational Supervisor and have employed people in that title beyond the nine months permitted by statute.

Respondents have routinely created a situation where the leave lines have an indefinite duration and the appointments are neither temporary or emergency in character. Respondents are effectively preventing any appointments from the certified eligible lists and preventing people from achieving permanent positions in the RD title. It follows that DPR's classification of people appointed to the leave lines of people serving provisionally in another title as temporary appointments is in violation of the spirit and intent of Civil Service Law §64. (O'Reilly v. Grumet, 308 NY 351 [1955]). Respondent are enjoined from making appointments in violation of CSL §§64 and 65.

Furthermore, CSL § 64(1)(b)(2) provides that "any further temporary appointment beyond such six month period or any temporary appointment originally made for a period exceeding six months shall be made by the selection of an appointee from among those graded highest on an appropriate eligible list, if available." Respondents have failed to consider names on existing eligibility lists for these appointments and have therefore violated CSL § 64(1)(b)(2). Personnel Rules and Regulations 5.7.1 provides for temporary appointments without examination in exceptional cases. The temporary appointments made by Respondents do not fall under any of the exceptions. Respondents are enjoined from making temporary appointment beyond the parameters in CSL §64 and outside the eligibility lists where the exceptions set out in Personnel Rules and Regulations 5.7.1 do not apply.

Petitioners also claim that DPR has created year round seasonal RD positions and continuously used seasonal appointments just under 12 months in violation of Rule 5.6.1 of the City Personnel Director Rule (CPDR). DPR appointed two RDs to serve on the in-house position of Afterschool Coordinator. DPR states that these positions were filled as non-competitive seasonal positions because the nature of the position is such that it is not continuous throughout the year but reoccurs in each successive year. Both of these individuals have permanent civil service titles in a lower title and were "stepped up" to the RD [*5]title in order to fill the position. Petitioners claim that these 11 month positions more closely resemble "year round" positions and that by creating these seasonal RD positions, Respondents have disguised the fact that the seasonal RDs are essentially provisional employees.

CPDR 5.6.1 defines a seasonal position as "[a]ll positions in the competitive class, where the nature of the service is such that it is not continuous throughout the year, but recurs in each successive calendar year, may be designated by the city personnel director as seasonal positions and appointments thereto shall be designated as seasonal appointments." Respondents argue that the two RDs in those positions have been stepped down and that if an Afterschool position is required next year, DPR will fill the position with a year round employee in an appropriate civil service title. As such, to the extent that Petitioners' complain of seasonal appointees in the RD title, the Petition is moot and is dismissed.

Accordingly it is

ADJUDGED AND DECLARED that Respondents' continuing employment of provisional employees and temporary employees in the competitive class title of Recreation Director despite an eligibility list and duration guidelines violates statutes and rules as discussed in the above decision and are invalid; and it is further

ORDERED that Respondents will terminate provisional appointments in the titles listed herein and replace them with appointees from eligibility lists and conform to the guidelines set out in the statutes and rules; and it is further

ORDERED that Respondents are enjoined from allowing the pending eligibility lists to expire.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1:By Stipulation of Settlement dated May 25, 2006, the proceeding was discontinued against Respondents Department for the Homeless and New York City Department of Juvenile Justice. The proceeding remains against Respondents New York City Department of Citywide Administrative Services and New York City Department of Parks and Recreation.