
    In the Matter of Roosevelt Haynes, Appellant, v County of Chautauqua et al., Respondents.
    Argued November 20, 1981;
    decided December 23, 1981
    
      APPEARANCES OF COUNSEL
    
      Clarence H. Snyder for appellant.
    
      Edwin J. Kuzdale, County Attorney (Bruce K. Carpenter of counsel), for respondent.
    
      Harvey Randall for New York State Department of Civil Service, amicus curiae.
    
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioner contends that he was improperly terminated as a medical social worker at the Chautauqua County Home and Infirmary. He received a provisional appointment on April 26, 1976. At that time, no civil service eligible list existed for the position. On October 22, 1979, an eligible list was established, and petitioner, who had taken a competitive civil service examination in April, 1979, was ranked first with two other persons. On November 20,1979, he was notified that his employment would be terminated on December 7, 1979.

Petitioner maintains that he became a permanent probationary employee when the civil service eligible list was established on October 22,1979, and he therefore could not be removed without a hearing during the eight-week minimum probationary period. Under the terms of the statute, however, petitioner remained a provisional employee until he was terminated. Subdivision 3 of section 65 of the Civil Service Law states that 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”. For petitioner’s position, the eligible list was established on October 22 and his employment was terminated effective December 7, 1979, well within the two-month period.

Petitioner misses the mark with his contention that subdivision 4 of section 65, as construed in Matter of La Sota v Green (53 NY2d 631), conferred permanent probationary status upon him when the October 22 eligible list was established. That subdivision, by its express terms, applies only 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” (Civil Service Law, § 65, subd 4). Here the list was adequate and was not exhausted. Although it is true that petitioner was continued in his provisional appointment well beyond the maximum nine-month period (Civil Service Law, § 65, subd 2), the statute does not convert such a continuation, by itself, into permanent employment status.

Whatever appeal the argument that such a continuation by itself should transform a provisional appointment to a permanent one has, the fact remains that the Legislature has refrained from so providing. Absent such action by the Legislature, retention of a provisional employee beyond nine months, although proscribed by subdivision 2 of section 65, does not, without more, ripen into a permanent appointment (see Matter of Vazquez v New York City Dept. of Social Servs., 56 AD2d 432, 434, affd 44 NY2d 720).

Jasen, J.

(dissenting). I cannot agree with the majority’s interpretation of section 65 of the Civil Service Law or of the prior case law. Therefore, I dissent and would reverse the order of the Appellate Division and order the petitioner’s reappointment for an appropriate probationary term. The clear intent of this State’s constitutional requirement of a civil service system (NY Const, art V, § 6) is to prevent abusive employment practices while assuring the government a competent and stable work force. The majority’s decision today not only violates that general purpose of the Civil Service Law, but also violates petitioner’s rights under the Civil Service Law.

Petitioner was originally appointed on a provisional basis because no eligibility list existed at that time. A provisional appointment, of course, does not entitle the appointee to the full panoply of protections under the Civil Service Law (Koso v Greene, 260 NY 491), but neither is it authorization to disregard the required procedures for hiring and dismissing employees.

Section 65 of the Civil Service Law governs provisional appointments. By its terms, such appointments cannot exceed nine months in duration. In this case, the county, in clear violation of the statute, retained petitioner as a provisional appointee for over three years.

Petitioner contends that under subdivision 4 of section 65 he is entitled to permanent appointment as of the date his name appeared among the top three candidates on the eligibility list. The majority interprets this remedy to be limited to appointees who are retained as provisional appointees beyond nine months because the eligibility list was exhausted. The statute, however, after authorizing successive provisional appointments in cases where the eligibility list has been exhausted, provides 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.” Petitioner, by taking the requisite examination the first time it was offered and by placing among the top three candidates became eligible for permanent appointment. The county, by virtue of retaining him in that position after his name appeared on the civil service eligibility list, was required to make the appointment permanent.

This is precisely the interpretation of section 65 which this court applied in Matter of La Sota v Green (53 NY2d 631, 632). In that case, this court held that the petitioner “who was retained over a month beyond the nine-month statutory term of his provisional appointment *** attained permanent status when he was continued in his position subsequent to his name appearing on an eligible list”. Such an interpretation of this statute is more appropriate given its clear prohibition against extending provisional appointments beyond nine months.

Thus, I would hold that petitioner became a permanent appointee when he was retained, after his name appeared on the eligibility list, in the position to which he had originally been provisionally appointed.

This is not to say he would not be required to complete the probationary term required of all permanent employees. However, during the probationary term, petitioner would be entitled to the procedural protections of the Civil Service Law and the rules promulgated thereunder. In this case, then, petitioner should have been given the benefits of the required evaluations of his work (4 NYCRR 4.5 [a] [5] [in]) and at least the minimum probationary period of eight weeks (4 NYCRR 4.5, as amd by Chautauqua County Classified Civil Service Rule XIII, § 1 [a]; Matter of Albano v Kirby, 36 NY2d 526). Although it is possible that the county would have reason for not continuing petitioner in his position after the minimum probationary term, it is difficult to conceive of what problems would arise with petitioner’s job performance during that period which had not arisen during the extended period of his provisional appointment.

This case presents the type of manipulation of the Civil Service Law which should not be sanctioned. Accordingly, I would reverse the order of the Appellate Division and order the petitioner reinstated as a permanent appointee subject to an eight-week probationary term.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Jasen dissents and votes to reverse in an opinion.

Order affirmed.  