2017 New York Laws
CVS - Civil Service
Article 4 - Recruitment of Personnel
Title B - Appointment and Promotion
65 - Provisional Appointments.
65. Provisional appointments. 1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination. Such non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.
2. Time limitation on provisional appointments. 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 a municipal civil service commission shall for competitive positions within its jurisdiction, order a civil service examination for any position held by provisional appointment for a period of one month and such department or 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.
3. Termination of provisional appointments. A provisional appointment to any position shall be terminated within two months following the establishment of an appropriate eligible list for filling vacancies in such positions; provided, however, that where there are a large number of provisional appointees in any department or agency in the service of the state or any civil division thereof to be replaced by permanent appointees from a newly established eligible list, and the appointing officer or body deems that the termination of the employment of all such provisional appointees within two months following establishment of such list would disrupt or impair essential public services, evidence thereof may be presented to the civil service department or municipal commission having jurisdiction which, after due inquiry, and upon finding that it is in the best interest of the public service, may waive the provisions of this subdivision requiring the termination of the employment of provisional appointees within two months following the establishment of an appropriate eligible list and authorize the termination of the employment of various numbers of such provisional appointees at stated intervals prescribed by such commission; provided, however, that in no case shall the employment of any such provisional appointee be continued longer than four months following the establishment of such eligible list.
4. Successive provisional appointments. Successive provisional appointments shall not be made to the same position after the expiration of the authorized period of the original provisional appointment to such position; provided, however, that where an examination for a position or group of positions fails to produce a list adequate to fill all positions then held on a provisional basis, or where such list is exhausted immediately following its establishment, a new provisional appointment may be made to any such position remaining unfilled by permanent appointment, and such new provisional appointment may, in the discretion of the appointing authority, be given to a current or former provisional appointee in such position, except that a current or former provisional appointee who becomes eligible for permanent appointment to any such position shall, if he is then to be continued in or appointed to any such position be afforded permanent appointment to such position.
* 5. Plan for addressing excess provisional appointments. (a) Definition. For purposes of this subdivision, "DCAS employers" shall mean (i) the city of New York; and (ii) any other entities whose civil service and examinations are administered by the New York city department of citywide administrative services ("DCAS"), and who opt to participate in this section by written notice to the state commission within thirty days of the effective date of this subdivision. Notice of such option shall constitute a delegation to DCAS to act on behalf of the entity providing the notice pursuant to this subdivision. All subsequent communications from the DCAS employers to the state commission pursuant to this subdivision shall be provided by the commissioner of DCAS on behalf of such employers, and all notices provided to the DCAS employers pursuant to this subdivision shall be provided to the commissioner of DCAS.
(b) Plan for provisional employees. Within sixty days after the effective date of the chapter of the laws of two thousand seven which added this subdivision, the DCAS employers shall be required to submit to the state commission for its approval a single plan, to be implemented within five years of its approval by the state commission, to substantially comply with the time periods permitted by subdivisions one, two, three and four of this section. For purposes of this subdivision, "substantial compliance" shall mean that the total number of competitive class positions of the DCAS employers filled by provisional appointments that have continued beyond the periods permitted by subdivisions one, two, three and four of this section shall not exceed five percent. Such plan may include, but shall not be limited to, a schedule for administration of examinations and establishment of eligible lists, a determination of additional appropriate existing or planned eligible lists that may be used, consolidation of titles through appropriate reclassification, and any other lawful and appropriate means of implementation. The plan shall be supported by appropriate documentation and explanation, and the information contained in the plan shall be confirmed by the commissioner of DCAS as accurate to the best of his or her knowledge, based on a reasonable inquiry by DCAS into the facts set forth therein.
(c) Approval by the state commission. Within one hundred twenty days of submission of a plan by the DCAS employers, the state commission shall approve the plan, approve the plan with recommended changes, or disapprove the plan. If the state commission takes none of these actions within such period, it shall be deemed to have approved the plan. At any time when the state commission is considering a plan, the state commission may request additional supporting documentation or explanation. Pending the receipt of such supporting documentation or explanation, the time period for state commission approval or disapproval of the plan shall be tolled. The failure of the DCAS employers to provide materially accurate information, or reasonably available documentation or reasonable explanation upon request by the state commission within sixty days, shall be grounds for disapproval of the plan. If the changes recommended by the state commission are not accepted by the DCAS employers within thirty days, the plan shall be deemed disapproved. The state commission shall approve the plan if it finds that, consistent with available resources and the need for continuity in public services, such submitted plan provides a timely and practicable implementation schedule in furtherance of the purposes of this subdivision. In the event that a plan has been disapproved, a new or modified plan shall be submitted to the state commission within sixty days. The state commission shall within ninety days thereafter either approve the new or modified plan, approve the plan with recommended changes or disapprove the new or modified plan. If the changes to the new or modified plan recommended by the state commission are not accepted by the DCAS employers within thirty days, the plan shall be deemed disapproved. If the state commission takes none of these actions within such period, it shall be deemed to have approved the plan. At any time when the state commission is considering a new or modified plan, the state commission may request additional supporting documentation or explanation. Pending receipt of such supporting documentation or explanation, the time period for state commission approval or disapproval of such new plan or modification shall be tolled. The failure of the DCAS employers to provide reasonably available documentation or reasonable explanation in relation to the new or modified plan upon request by the state commission within thirty days shall be grounds for disapproval of the new or modified plan. Notwithstanding any inconsistent provision of this subdivision, this subdivision shall no longer be in force and effect if no plan has been approved by the state commission within eighteen months from the effective date of the chapter of the laws of two thousand seven which added this subdivision.
(c-1) Revised plan for provisional employees. Within sixty days after the effective date of this paragraph, the DCAS employers shall be required to submit to the state commission for its approval a single comprehensive revision of the plan prepared pursuant to paragraph (b) of this subdivision, to be implemented by November first, two thousand sixteen, to further reduce the number of provisional appointments that have continued beyond the periods permitted by subdivisions one, two, three and four of this section. Such revised plan may contain any elements or means of implementation authorized by paragraph (b) of this subdivision. The revised plan shall be supported by appropriate documentation and explanation, and the information contained in the plan shall be confirmed by the commissioner of DCAS as accurate to the best of his or her knowledge, based on a reasonable inquiry by DCAS into the facts set forth therein. Within sixty days of the submission of such plan, the state commission shall approve the revised plan, with or without recommended changes, or disapprove it. The approval process shall otherwise conform to the timeframes and procedures set forth in paragraph (c) of this subdivision. Notwithstanding any inconsistent provision of this subdivision, this subdivision shall no longer be in force and effect if no revised plan has been approved by the state commission within eighteen months from the effective date of this paragraph.
(c-2) Qualified incumbent examination.
(i) DCAS may administer a qualified incumbent examination ("QIE") for appointment to any competitive title, consistent with subparagraph (ii) of this paragraph, exclusively to current employees who, at the time of application to take such examination, have served provisionally in such title for two or more years. Provided that the employee taking such examination shall meet the minimum educational and other specified requirements set forth in the notice of examination for the title in which he or she currently serves, as established by the DCAS employers, an employee with two years of provisional service may be appointed from the list resulting from such examination. Neither provisional service in a title performed by an employee during a period of time in which there existed an appropriate eligible list of candidates for the title, unless such list was not adequate to fill all positions then held on a provisional basis or was exhausted immediately following its establishment, nor service in a temporary title established pending proposed reclassification shall count toward such two years of provisional service.
(ii) DCAS may administer a QIE only for those titles that are set forth in section four of the chapter of the laws of two thousand sixteen that added this paragraph.
(iii) DCAS shall not administer a QIE for any title for which (a) an examination has been administered but an eligible list has not been established, or (b) there exists an eligible list resulting from an open competitive examination that contains three or more individuals.
(iv) A list resulting from a promotional examination for a title must be exhausted before a list resulting from a QIE for that title may be established.
(v) A list resulting from a QIE must be exhausted before an eligible list resulting from an open competitive examination for that title may be certified to any agency.
(vi) A person appointed from a list resulting from a QIE shall be credited with the time he or she served provisionally in that title toward the probationary period for that title up to a maximum of nine months.
(c-3) Revised plan for provisional employees. Within sixty days after the effective date of this paragraph, the DCAS employers shall be required to submit to the state commission for its approval a single comprehensive revision of the plan prepared pursuant to paragraph (b) of this subdivision, to be implemented by November first, two thousand eighteen, to further reduce the number of provisional appointments that have continued beyond the periods otherwise permitted by this section. Such revised plan may additionally contain any elements or means of implementation authorized by paragraph (b) of this subdivision. The revised plan shall be supported by appropriate documentation and explanation, and the information contained in the plan shall be confirmed by the commissioner of DCAS as accurate to the best of his or her knowledge, based on a reasonable inquiry by DCAS into the facts set forth therein. Within sixty days of the submission of such plan, the state commission shall approve the revised plan, with or without recommended changes, or disapprove it. The approval process shall otherwise conform to the timeframes and procedures set forth in paragraph (c) of this subdivision. Notwithstanding any inconsistent provision of this subdivision, this subdivision shall no longer be in force and effect if no revised plan has been approved by the state commission within eighteen months from the effective date of this paragraph.
(d) Modifications of the plan. During the course of implementing the plan developed, approved and revised in accordance with paragraphs (b), (c), (c-1) and (c-3) of this subdivision, if the DCAS employers determine that there is a need to modify the plan, they shall submit a request for modification of the plan to the state commission. Such request shall detail the circumstances that have arisen necessitating the request, including but not limited to unforeseen demands upon resources, unforeseen projected impacts upon the provision of public services, or a finding that implementation of any part of the plan is impracticable, unduly burdensome or otherwise likely to prevent the successful implementation of the plan or any aspect thereof. The state commission shall act upon the request for modification within sixty days. The state commission may in its discretion approve the modification, approve the modification with recommended changes, or disapprove the modification; provided, however, that if the state commission takes no action within such period, it shall be deemed to have approved the modification, and provided further that if the changes recommended by the state commission are not accepted by the DCAS employers within thirty days, the modification shall be deemed disapproved. Notwithstanding any inconsistent provision of this paragraph, where a modification is insubstantial, and will not materially affect the ability of the DCAS employers to reduce the number of provisional appointments in accordance with paragraph (c-1) or (c-3), as applicable, of this subdivision, DCAS may so certify and the modification may be implemented and shall be filed by DCAS with the state commission within five business days. In the event that a request for modification is disapproved, the plan previously in effect shall remain in effect, provided that the DCAS employers may at any time submit a new proposed modification. Any modification approved pursuant to this paragraph may extend the duration of a plan to a date no more than one year beyond the two-year period authorized by paragraph (c-3) of this subdivision.
(e) Plan implementation. Upon approval of a plan or any modification thereof, such plan or modification shall be binding upon, and shall be implemented by, the DCAS employers. If the state commission concludes that the DCAS employers have failed to comply with their plan, the state commission shall provide them with notice through DCAS of such finding, including whether the failure is alleged to be persistent and material, and thirty days to respond. If, upon review of such response, the state commission concludes that the DCAS employers are still in non-compliance, it shall so inform DCAS and may then in its discretion take such measures as it deems necessary to bring about compliance, including precluding one or more DCAS employers from making any additional provisional appointments to positions directly related to the finding of non-compliance, or taking such other measures, including seeking equitable relief in a court action, as may be authorized by law. In the event that the state commission has informed DCAS of a specific finding of persistent and material non-compliance, then, in addition to any other authorized measures, it may (i) preclude one or more DCAS employers from making any additional provisional appointments to positions directly related to the finding of persistent and material non-compliance, or to positions in the particular city agencies, or public entities other than the city, in which the persistent and material non-compliance has been found, or (ii) revoke its approval of the plan, or any part thereof. In the event of revocation of the plan, this subdivision shall no longer have any force and effect. Where applicable, enforcement remedies utilized by the state commission pursuant to this paragraph shall be directed at the particular city agency, or public entity other than the city, that the state commission finds to have caused the finding of non-compliance.
(f) Time limitation. Notwithstanding any inconsistent provision of this chapter or any other law or rule to the contrary, the provisions of subdivision two of this section shall not apply to DCAS employers upon the effective date of chapter five of the laws of two thousand eight, and during the timely submission, approval and implementation of a plan in accordance with paragraphs (b), (c) and (e) of this subdivision, and of revised plans in accordance with paragraphs (c-1) and (c-3) of this subdivision. The provisions of subdivision two of this section shall be applicable to any provisional employee serving in a position for which an appropriate eligible list has been established pursuant to such plan or revised plans, unless such list is not adequate to fill all positions then held on a provisional basis or is exhausted immediately following its establishment.
(g) Agreements governing disciplinary procedures. Notwithstanding any inconsistent provision of this chapter or any other law or rule to the contrary, any DCAS employer and an employee organization, as such term is defined in article fourteen of this chapter, may enter into agreements to provide disciplinary procedures applicable to provisional appointees or categories thereof who have served for a period of twenty-four months or more in a position which is covered by such an agreement. No such provisional employee shall be deemed to be permanently appointed under such circumstances, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. Any such agreement may apply upon the effective date of chapter five of the laws of two thousand eight, and during the timely submission, approval and implementation of a plan in accordance with paragraphs (b), (c) and (e) of this subdivision, and of revised plans in accordance with paragraphs (c-1) and (c-3) of this subdivision, and shall not apply to any provisional employee serving in a position for which an appropriate eligible list has been established pursuant to a plan approved in accordance with this subdivision unless such list is not adequate to fill all positions then held on a provisional basis or is exhausted immediately following its establishment.
* NB Repealed December 31, 2018
* 6. Costs. For purposes of this subdivision, the term "DCAS employers" shall have the same meaning as that term is defined in subdivision five of this section. The department is hereby authorized to charge the city of New York for the services and costs associated with approving and monitoring any plan submitted by the DCAS employers. No later than December first, two thousand eight and each year thereafter, the department shall estimate the amount necessary, for the entirety of that state fiscal year, to reimburse the department's costs related to the review of such plan, and shall submit the estimated costs to the department of city administrative services not to exceed six hundred thousand dollars. The city of New York shall pay such estimated costs to the department by December fifteenth, two thousand eight and each year thereafter. To the extent, in any year, actual costs for the state fiscal year differ from those estimated by the department and paid by the city of New York, the variance shall be reflected as an additional charge or a credit within the estimated costs submitted by the department in the following year, so long as the total amount payable to the department for any year's cost does not exceed six hundred thousand dollars. The city of New York may charge any DCAS employer that is not an agency of the city of New York a share of the costs the department charged to the city under this subdivision. The percentage of costs that may be charged to any DCAS employer shall be determined based on that employer's share of the total number of competitive class positions filled by provisional appointments reflected in the most recent department of city administrative services plan submitted under subdivision five of this section. In the event the city of New York shall not have made such required payments by December fifteenth, two thousand eight and each year thereafter, the commissioner shall certify the unpaid amount to the state comptroller, and the comptroller shall, to the extent not otherwise prohibited by law, withhold such amount from the next succeeding payment of per capita assistance to be apportioned to the city of New York.
* NB Repealed December 31, 2018
