State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522628 

________________________________

In the Matter of MICHAL

STALEY et al.,

Appellants,

v

MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF 

CORRECTIONS AND COMMUNITY 

SUPERVISION et al.,

Respondents.

________________________________

Calendar Date: October 21, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

Lippes Mathias Wexler Friedman LLP, Albany (William F.

Sheehan of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Julie M.

Sheridan of counsel), for respondents.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Platkin, J.),

entered May 27, 2015 in Albany County, which dismissed

petitioners' application, in a proceeding pursuant to CPLR

article 78, to review a determination of respondents denying

petitioner Michal Staley a promotion to the position of

correction sergeant.

In 1997, petitioner Michal Staley began his employment with

respondent Department of Corrections and Community Supervision

(hereinafter DOCCS) as a correction officer and, in 2006, was

promoted to the position of correction sergeant. In January
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2013, while Staley was assigned to the Coxsackie Correctional

Facility, DOCCS issued Staley a notice of discipline charging him

with making inappropriate sexual advances toward a female

subordinate in violation of certain provisions of DOCCS's

employee manual, as well as DOCCS Directive No. 2605, entitled

"Sexual Harassment in the Work Place," and proposed a penalty of

dismissal from service and loss of any accrued annual leave. In

accordance with the governing collective bargaining agreement,

petitioner New York State Correctional Officers and Police

Benevolent Association, Inc. (hereinafter NYSCOPBA) filed a

grievance on behalf of Staley challenging the notice of

discipline. DOCCS suspended Staley without pay pending the

resolution of the disciplinary grievance. 

Before the matter proceeded to arbitration, the parties

reached a settlement agreement in full satisfaction of the notice

of discipline. Under the terms of the agreement, Staley, among

other things, accepted a demotion to the position of correction

officer upon his return to work on February 27, 2012 and agreed

to serve a 12-month disciplinary evaluation period. The

agreement further provided, upon NYSCOPBA's and Staley's

insistence, that "[t]he acceptance of demotion to [c]orrection

[o]fficer in no way prohibits . . . Staley to take future

promotional examinations."

In October 2013, Staley took the promotional examination

for correction sergeant and received a score of 95, placing him

forty ninth out of 3,731 candidates on the eligible list. In

August 2014, DOCCS promoted a group of candidates – not including

Staley – to the correction sergeant position, most of which

ranked lower than Staley on the eligible list. Shortly

thereafter, DOCCS made another round of promotional appointments

to the position of correction sergeant, again bypassing Staley. 

NYSCOPBA subsequently inquired as to why Staley had been passed

over for a promotion, and, according to petitioners, the

Personnel Director of DOCCS indicated that Staley would never be

promoted and that he would be seeking Staley's removal from the
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eligible list.1 Petitioners subsequently commenced this CPLR

article 78 proceeding alleging that respondents' failure and

refusal to promote Staley to the position of correction sergeant

violated the settlement agreement and was also arbitrary and

capricious. Following joinder of issue, Supreme Court dismissed

the petition, concluding that the settlement agreement did not

include an express or implied promise to appoint Staley to the

position of correction sergeant if he became reachable on the

eligible list and that DOCCS's determination to bypass Staley in

an exercise of its discretionary appointive authority was not

arbitrary or capricious or affected by an error of law. 

Petitioners appeal, and we affirm.

Petitioners argue that a fair interpretation of the

settlement agreement includes DOCCS's implied promise to waive

its statutory discretion under the "one-of-three" rule embodied

in Civil Service Law § 61 (1) and promote Staley to the position

of correction sergeant if he became reachable on a future

eligible list. Civil Service Law § 61 (1) provides that

"[a]ppointment or promotion from an eligible list to a position

in the competitive class shall be made by the selection of one of

the three persons certified by the appropriate civil service

commission as standing highest on such eligible list who are

willing to accept such appointment or promotion." In recognition

that "examination success cannot reveal any possible defects of

personality, character or disposition which may impair the

performance of one's duties in a civil service position," the

"one-of-three" rule affords an appointing authority with the

discretion to individually consider each candidate and decline to

promote the highest scoring candidate on an eligible list, so

long as it appoints one of the three top scoring candidates

(Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo

Bd. of Educ.], 90 NY2d 364, 375 [1997]; see Matter of Gomez v

Hernandez, 50 AD3d 404, 404 [2008]).

1 The Department of Civil Service ultimately denied the

request of the Personnel Director of DOCCS to remove Staley from

the eligible list.
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While an appointing authority is generally not prohibited

from voluntarily surrendering the discretion afforded to it by

Civil Service Law § 61 (1) (see Matter of Professional, Clerical,

Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d at 376; Matter

of Lucas [City of Buffalo], 93 AD3d 1160, 1163 [2012]), the

settlement agreement, which states that Staley is "in no way

prohibit[ed from] tak[ing] future promotional examinations," does

not expressly surrender such discretion. In assessing whether

DOCCS impliedly surrendered its statutory discretion, we are

mindful that, "in implying a promise[,] a court should act

prudently and that 'a promise can be implied only where we may

rightfully assume that it would have been made if attention had

been drawn to it'" (Long Is. R.R. Co. v Northville Indus. Corp.,

41 NY2d 455, 462 [1977], quoting Genet v Delaware & Hudson Canal

Co., 136 NY 593, 609 [1893]; see Maas v Cornell Univ., 94 NY2d

87, 94 [1999]).

In support of their position that DOCCS impliedly promised

to waive its discretion under Civil Service Law § 61 (1) and

promote Staley once he became reachable on a promotional list,

petitioners submitted the affidavit of the Mid-Hudson Region Vice

President of NYSCOPBA, who stated that it was DOCCS's "practice

. . . to make appointments from the eligible list in strict

numerical order, without exercising the one-[of]-three rule to

pass over certain individuals on the list" and that, although

Staley's actual appointment to correction sergeant if he was

reachable on a promotional list was not discussed during the

negotiation of the settlement agreement, he did not believe that

such a discussion was necessary given DOCCS's longstanding

appointment practices. He also stated that it was both his and

Staley's understanding that Staley would not be passed over for a

promotion under the "one-of-three" rule. Similarly, another

NYSCOPBA official stated that it was DOCCS's practice to make

appointments "straight down the list in numerical order" and that

it was "extremely rare" for DOCCS to deviate from that practice. 

In addition, both NYSCOPBA officials indicated that Staley

had a right to take promotional examinations even without the

inclusion of language to that effect in the agreement and that

the disputed provision in the agreement only had meaning if it

was interpreted as a promise to appoint Staley to the position of
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correction sergeant once he was reachable on the eligible list. 

Petitioners further submitted email correspondence in which an

employee in DOCCS's Bureau of Labor Relations stated that DOCCS

"ha[d] no intention of stopping [Staley] from taking future

promotion exams" and therefore would acquiesce to Staley's demand

that the agreement include language stating that he "not be

prevented from taking future promotional exams for [s]ergeant." 

As properly concluded by Supreme Court, the foregoing

submissions, considered along with affidavits of DOCCS employees

stating that DOCCS did not waive or limit its discretionary

appointive authority, do not demonstrate that DOCCS manifested an

intention to surrender its appointment discretion under Civil

Service Law § 61 (1) with respect to Staley and appoint him once

he became reachable on the promotional list (see Long Is. R.R.

Co. v Northville Indus. Corp., 41 NY2d at 461-462; Gertler v

Goodgold, 107 AD2d 481, 485 [1985], affd 66 NY2d 946 [1985]). 

Accordingly, DOCCS's refusal to promote Staley to the position of

correction sergeant did not violate the settlement agreement.

Turning to DOCCS's determination not to promote Staley,

DOCCS's Director of Personnel asserted that DOCCS departed from

its usual practice of making appointments "in score and seniority

order off the promotion-eligibility list," which departure does

not in and of itself render DOCCS's determination arbitrary and

capricious (see Matter of Andriola v Ortiz, 82 NY2d 320, 324

[1993], cert denied 511 US 1031 [1994]), given Staley's recent

substantiated disciplinary charge of sexual harassment and the

agency's policy of considering such misconduct in making

promotional appointments so as to advance the goals of the Prison

Rape Elimination Act (see 42 USC § 15601 et seq.). Considering

this explanation, DOCCS's determination to exercise its

discretion under Civil Service Law § 61 (1) and bypass Staley

when it made its promotional appointments was not an abuse of

discretion, arbitrary and capricious or affected by an error of

law (see CPLR 7803 [3]; Matter of Gomez v Hernandez, 50 AD3d at

404-405).

To the extent that any of petitioners' arguments have not

been expressly discussed herein, they have been examined and

found to be without merit.
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McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court