Matter of Montero v. Lum, 68 N.Y.2d 253 (1986)

Under New York Civil Service Law § 65, a provisional employee’s retention beyond the statutory nine-month term, after their name appears on an eligible list, automatically converts their status to a permanent appointment, regardless of the length of the continuation.

Summary

Montero, an assistant water chemist and bacteriologist, was provisionally appointed. The central issue is whether his provisional status converted to permanent status under Civil Service Law § 65(4) when he was retained beyond the nine-month provisional term after his name appeared on an eligible list. The Court of Appeals held that the statute’s plain wording dictates that any continuation beyond the nine-month term, after eligibility, results in permanent status. The court rejected the Appellate Division’s requirement of a ‘substantial’ continuation period. The case was remitted to determine if Montero’s termination complied with rules for probationary terms of permanent appointees.

Facts

• Montero was provisionally appointed as an assistant water chemist and bacteriologist.
• His nine-month provisional appointment was set to end on March 21, 1979, pursuant to Civil Service Law § 65(2).
• Montero’s name appeared on an eligible list for a permanent appointment on March 6, 1979.
• He was retained in his position for over a month beyond the nine-month provisional term.
• Montero was subsequently terminated.

Procedural History

The case originated in the Supreme Court, Westchester County. The Appellate Division interpreted Civil Service Law § 65(4) as requiring a ‘substantial period of time’ for a provisional appointment to convert to a permanent one. The Court of Appeals reversed the Appellate Division’s order, remitting the case to the Supreme Court to determine if Montero’s termination complied with the rules for probationary periods applicable to permanent appointees.

Issue(s)

1. Whether Civil Service Law § 65(4) requires a ‘substantial period of time’ of continued employment beyond the nine-month provisional term and after appearing on an eligible list for a provisional appointment to convert to a permanent appointment.
2. Whether Montero’s termination complied with the applicable rules dealing with probationary terms for permanent appointees.

Holding

1. No, because the plain wording of Civil Service Law § 65 does not indicate that the attainment of permanent status depends on the length of time a provisional employee is retained after becoming eligible for permanent appointment.
2. Undetermined; the case is remitted to the Supreme Court to determine this issue.

Court’s Reasoning

The Court of Appeals focused on the plain language of Civil Service Law § 65. The court found no requirement for a ‘substantial period of time’ for continued employment after eligibility to trigger the conversion to permanent status. The court stated, “Nothing in section 65 indicates that attainment of permanent status is dependent upon the length of time a provisional employee is ‘continued in’ his or her position after becoming eligible for permanent appointment.” Since Montero was retained beyond the nine-month statutory term after his name appeared on the eligible list, he attained permanent status. However, the court noted that further proceedings were necessary to determine whether Montero’s termination complied with the rules governing probationary periods for permanent appointees. The court’s decision emphasizes a strict construction of the statute, prioritizing the specific timing of eligibility and continuation over a more flexible interpretation of the length of employment. This protects provisional employees who meet the statutory requirements from arbitrary denial of permanent status based on subjective assessments of a ‘substantial period’. The decision provides clear guidance for civil service employers and employees, establishing a bright-line rule for conversion from provisional to permanent status.