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

A provisional civil service employee does not automatically attain permanent status simply by being retained in the position after their name appears on an eligibility list; further action by the appointing authority is required.

Summary

This case addresses the rights of a provisional civil service employee who remains employed beyond the statutory nine-month limit and whose name subsequently appears on an eligibility list. Montero was a provisional employee for over three years. The court held that while remaining employed past nine months violates the Civil Service Law, it does not automatically convert the provisional appointment into a permanent one. The appointing authority must affirmatively grant a permanent appointment. Montero was not entitled to permanent status simply because he was retained after his name appeared on the eligibility list; he was entitled to be considered for permanent appointment.

Facts

Montero was appointed provisionally to a civil service position because no eligibility list existed. He served in this provisional role for over three years, significantly exceeding the statutory nine-month limit for provisional appointments. Montero took the civil service exam, and his name appeared on the eligibility list among the top three candidates. Despite this, he was not given a permanent appointment and was later terminated.

Procedural History

Montero sought a court order compelling his permanent appointment. The lower court ruled in his favor, but the Appellate Division reversed. The case then went to the New York Court of Appeals, which affirmed the Appellate Division’s decision, holding that Montero was not automatically entitled to permanent status.

Issue(s)

Whether a provisional civil service employee, retained in their position beyond the nine-month statutory limit and whose name subsequently appears on an eligibility list, is automatically entitled to a permanent appointment.

Holding

No, because being retained in a provisional position after one’s name appears on an eligibility list does not automatically confer permanent status; an affirmative act of appointment by the appointing authority is required.

Court’s Reasoning

The Court of Appeals emphasized that while the Civil Service Law aims to prevent abusive employment practices, it also recognizes the appointing authority’s discretion in making appointments. The court acknowledged that retaining a provisional employee beyond nine months violates the statute. However, it clarified that this violation does not automatically transform the provisional appointment into a permanent one. The statute requires an explicit act of appointment. The court distinguished its prior decision in Matter of La Sota v. Green, noting that while La Sota was entitled to permanent status, the critical factor was not merely being retained after eligibility but the totality of the circumstances suggesting an implied appointment. Here, no such circumstances existed. The dissent argued that retaining Montero after his name appeared on the eligibility list should have mandated his permanent appointment, subject to a probationary period. The dissent viewed the majority’s decision as sanctioning manipulation of the Civil Service Law. The majority countered that their decision upheld the necessary balance between protecting employee rights and preserving the appointing authority’s ability to select qualified candidates, noting, “an affirmative act of appointment on the part of the appointing officer is required.”