
    In the Matter of Andrea Becker, Respondent, v New York State Civil Service Commission et al., Appellants.
    Argued January 10, 1984;
    decided February 28, 1984
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General {Arlene R. Silverman and Peter H. Schiff of counsel), for appellants.
    The court below erred in holding that permanent civil service status could automatically be achieved by a provisional appointee while an eligible list for the position existed and had not been exhausted. (Matter of Haynes v County of Chautauqua, 55 NY2d 814; Matter of Vazquez v New York City Dept. of Social Servs., 56 AD2d 432,44 NY2d 720; Matter of Sable v Pinkard, 71 Misc 2d 126.)
    
      
      Aaron R. Sobel for respondent.
    I. Pursuant to subdivision 3 of section 65 of the Civil Service Law, petitioner was improperly terminated. (Matter of Haynes v County of Chautauqua, 55 NY2d 814.) II. The right to earn a livelihood is a property right guaranteed by the United States and New York State Constitutions, which has been violated by respondent. (Carroway v Jefferson Parish School Bd., 251 F Supp 462; Greene v McElroy, 360 US 474; Duffy v Schenck, 42 AD2d 774.) III. Petitioner, who scored perfect but only rated fifth was extremely experienced and should have been appointed.
   OPINION OF THE COURT

Kaye, J.

Respondent, a speech and hearing therapist, was continued in her provisional civil service appointment for two months and eight days after a list, by which she became eligible for permanent appointment to that position, was established. Special Term concluded that, because of her retention in the position for more than two months after the eligible list was established (which is a violation of Civil Service Law, § 65, subd 3), respondent was entitled to permanent status under subdivision 4 of that section, and the Appellate Division affirmed. In Matter of Haynes v County of Chautauqua (55 NY2d 814), we determined that even though an employee showed that his provisional appointment was wrongfully continued after he became eligible for permanent status in violation of subdivision 2 of section 65, the employee was not entitled to permanent status unless the additional conditions of subdivision 4 were met. Since here, as in Haynes, the additional conditions of subdivision 4 have not been met, we now reverse the order below and dismiss respondent’s article 78 petition seeking reinstatement with permanent status and back pay.

Respondent, employed at Letchworth Village Developmental Center since 1972, received a permanent civil service appointment as an audiologist, grade 17, in 1973. She was assigned the position of chief speech and hearing therapist, grade 23, on a provisional basis in March, 1975. Although she remained in the position on a provisional basis, the title of respondent’s position was changed to program co-ordinator II on June 28, 1979. In the fall of 1980, the State ordered a presentation of credentials in lieu of examination for the permanent position of program coordinator II.

As a result, on April 2, *1981 an eligible list was established by which respondent and several others became candidates for permanent appointment to the position of program co-ordinator II. (Civil Service Law, § 61, subd 1; 4 NYCRR 3.6.) On May 26, 1981, respondent was notified that she was being returned to her permanent position of audiologist, grade 17, and that her provisional appointment was terminated effective June 10, 1981. That date was more than two months after the establishment of the eligible list for her position. Although respondent’s supervisor, who had just recently come on the job and was in the process of reorganizing the department, initially felt that none of the eligible candidates possessed the requisite skills for the position and a decision was made to leave the position temporarily vacant, another eligible candidate from that list was given the permanent appointment to respondent’s former position in May, 1982.

Subdivision 3 of section 65 of the Civil Service Law provides in pertinent part 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”. It is undisputed that respondent was not terminated as a provisional appointee within two months following the establishment of the eligible list for her position. However, by itself, subdivision 3 does not confer any right to permanent status. Provisional employment ripens into a permanent appointment only pursuant to subdivision 4 of section 65, which reads: “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.”

Respondent was clearly a provisional appointee who became eligible for permanent appointment, but she has not satisfied the additional conditions of subdivision 4. The exception to subdivision 4 found in its last clauses does not stand alone, but must be read with reference to the entire provision. As the statute states and this court has held, subdivision 4 applies only when “an examination for a position * * * 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”. (Matter of Haynes v County of Chautauqua, 55 NY2d 814, 816, supra; Matter of Vazquez v New York City Dept. of Social Servs., 56 AD2d 432, 434, affd 44 NY2d 720.)

Here, there was no showing that the eligible list was inadequate or immediately exhausted. On the contrary, the presentation of credentials provided a list of candidates adequate in number to permit a permanent appointment to respondent’s position, and that list was not immediately exhausted, since there remained a sufficient number of eligible candidates from which a choice could be made. A list numerically adequate at the outset would be “exhausted” only if, because of appointments from the list to other positions, or because candidates on the list were unwilling to accept the position, or for any other reason, the appointment did not under section 61 of the Civil Service Law have to be made from the list. That the list was not exhausted in the present case is shown by the fact that a candidate from that list was appointed to fill the position.

While both Haynes and Vazquez concerned provisional appointments which were continued beyond the limit of nine months set forth in subdivision 2 of section 65 of the Civil Service Law, and respondent asserts a violation of subdivision 3, no different result follows. Subdivision 3, like subdivision 2, does not by itself transform a continued provisional appointment into a permanent position. That result occurs only under subdivision 4 and only if the additional conditions of that subdivision are fulfilled. Here, as in Haynes and Vazquez, they are not.

Appellants’ conduct in continuing respondent as a provisional employee for several days beyond the two-month limitation of subdivision 3 violated section 65 of the Civil Service Law. However, the Legislature has seen fit to provide that employees in this situation automatically gain permanent status only when the additional conditions of subdivision 4 are satisfied. If it is the intention that successive provisional employment be discouraged and that provisional employees in such situations become permanent employees by reason of the mere passage of time, further legislative action is required.

Accordingly, the order of the Appellate Division should be reversed and the petition dismissed, with costs.

Wachtler, J.

(dissenting). Subdivision 3 of section 65 of the Civil Service Law requires that a provisional appointment be terminated within two months after the establishment of an eligible list for the vacancy. Petitioner’s continuation as a provisional appointee for a longer period was a clear violation of the statute. That violation in itself did not convert petitioner’s appointment to a permanent one, however, except under the circumstances specified in subdivision 4 of section 65 (Matter of Haynes v County of Chautauqua, 55 NY2d 814). My disagreement with the majority stems from my belief that the conditions in subdivision 4 have been met in this case and that petitioner’s provisional appointment thus ripened into one of permanent status.

Subdivision 4 provides that in cases in which an eligible list is not adequate to fill all positions then held on a provisional basis, or when the list is exhausted immediately following its establishment, the continuation of a provisional appointee who has become eligible for permanent appointment to the position requires that permanent status be conferred. As the majority notes, petitioner clearly was eligible for permanent appointment. Although the established eligible list was adequate, it is my view that the list was exhausted immediately after its establishment. Petitioner’s continuation beyond the time period set forth in subdivision 3 therefore did confer upon her the right to permanent status.

Section 65 of the Civil Service Law represents a carefully circumscribed legislative approval of provisional appointments. Because such appointments are not based strictly upon merit and fitness, their validity is limited to specified time periods. Such an appointment may not continue beyond nine months or in any event for more than two months following establishment of an eligible list for the position. Examinations for such positions must be held as soon as practicable when provisional appointments are in existence. In permitting noncompetitive appointments on such a limited basis, the Legislature’s primary concern is, no doubt, for the integrity of the civil service system. Yet, the provisions of subdivision 4 also recognize the unfairness in continuing the provisional appointment of one who has become eligible for permanent appointment. Thus, under certain circumstances, that appointee, now deemed fully qualified for the position on a competitive basis, may not be continued in that position without affording permanent status.

In the present case, the employer has completely circumvented the strictures of section 65, in a manner which a majority of this court now sanctions. When presented with a certified list of eligible candidates containing the names of five individuals (including petitioner’s), the appointing authority determined that none of these persons was suitable for the position as she envisioned it. Once it was determined that no one who was reachable for the appointment was qualified for the position, that list was exhausted as surely as if every person had become otherwise unavailable for appointment. To hold that this list was not exhausted under these circumstances, as the majority does, is to permit a complete frustration of the legislative purpose, and to lay down a blueprint for its effective frustration in the future. It will now be possible to continue a provisional appointment indefinitely, as long as the employer refrains from appointing an eligible candidate from the list.

The majority concludes that the list was not exhausted in this case because “a candidate from that list was appointed to fill the position” (majority opn, at p 257). I note first that nowhere in the record on this appeal is there the slightest support for such a statement, and the majority does not even attempt to justify its reliance upon such inappropriate material. Although respondent’s brief contains a statement concerning the eventual appointment to this position, even respondent recognizes that such information does not form a part of the record, by including it in an advisory footnote. Even accepting that information as competent, however, we are told that another eligible candidate on the list received the appointment on May 14, 1982. This appointment was thus made over one year after the list was certified and approximately 10 months after this article 78 proceeding was commenced. Thus, even assuming the majority’s conclusion to be correct, it is relying upon an apparent change of heart by the appointing authority which occurred well after petitioner’s appointment became permanent by virtue of subdivision 4 of section 65. The illogic of this position is obvious.

Certainly, the Legislature could not have intended such a blatant circumvention of the statutory provisions. Because I believe the statute should be interpreted in a manner consistent with the legislative purpose, I would affirm the order of the Appellate Division.

Judges Jasen, Jones and Meyer concur with Judge Kaye; Judge Wachtler dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs; Judge Simons taking no part.

Order reversed, etc. 
      
      . We cannot agree with the dissent that the list was exhausted “[o]nce it was determined that no one who was reachable for the appointment was qualified for the position”. The principle the dissent would establish — that a permanent appointment must be made immediately or an eligible list is “exhausted” — is not supported by the legislative history of subdivision 4 (see McKinney’s Session Laws of NY, 1969, pp 2455-2456). Further it would lead to the anomalous and unwarranted result that when, as here, an appointing authority exercised its right to keep a position vacant instead of immediately appointing a reachable candidate, the list would be deemed exhausted, the rights of all nonreachable eligibles would be forfeited, and a new examination required.
     
      
      . Respondent does not dispute appellants’ statement that, after Special Term’s decision, the position was filled by another candidate from the eligible list, and there has been no allegation that the May, 1982 appointment was not made in accordance with section 61 of the Civil Service Law. In La Sota v Green (53 NY2d 631), by contrast, the list contained only three eligible candidates for two vacant positions, and the appointment actually made was not from the list. La Sota did not address the question of whether a violation existed of subdivision 2 or 3 of section 65 of the Civil Service Law, but only whether, assuming a violation, the employee was “continued in” his provisional employment for a sufficient period under subdivision 4.
     
      
      . The only thing respondent had to do to prevent petitioner’s appointment from becoming permanent was to ensure that it was terminated within two months of the establishment of the eligible list.
     
      
      . To the majority’s assertion that petitioner does not dispute the statement that the position was filled by another candidate, it should suffice to note, first, that petitioner has had no meaningful opportunity to reply to the statement inasmuch as respondent has not itself relied upon the appointment as demonstrating that the list was not exhausted, and second, petitioner has no obligation to refute evidentiary assertions that are not part of the record.
     