NY Civ Serv L § 65 (2021)
2021 New York Laws CVS - Civil Service Article 4 - Recruitment of Personnel Title B - Appointment and Promotion 65 - Provisional Appointments.

§ 65. Provisional       appointments. 1. Provisional      appointments authorized.  Whenever there is no appropriate  eligible  list  available for  filling  a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified  after such  non-competitive  examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can  be  made  after competitive examination. Such non-competitive examination may consist of a   review   and  evaluation  of  the  training,  experience  and  other qualifications  of  the  nominee,  without  written,   oral   or   other performance tests.   2.   Time  limitation  on  provisional  appointments.  No  provisional appointment shall continue for a period in excess of  nine  months.  The civil  service  department  shall  for  competitive positions within its jurisdiction,  and  a  municipal  civil  service  commission  shall  for competitive  positions  within  its  jurisdiction, order a civil service examination for any position  held  by  provisional  appointment  for  a period  of  one  month and such department or commission shall conduct a civil service examination, or see that such an examination is conducted, as soon as practicable thereafter, in order to prevent  the  provisional appointment from continuing for a period in excess of nine months.   3.  Termination of provisional appointments. 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; provided, however, that where there are a  large  number of  provisional appointees in any department or agency in the service of the state or any civil division thereof  to  be  replaced  by  permanent appointees  from  a  newly established eligible list, and the appointing officer or body deems that the termination of the employment of all such provisional appointees within two months following establishment of such list would disrupt or impair essential public services, evidence thereof may be presented to the civil service department or municipal commission having jurisdiction which, after due inquiry, and upon finding  that  it is  in the best interest of the public service, may waive the provisions of this subdivision requiring  the  termination  of  the  employment  of provisional  appointees within two months following the establishment of an appropriate eligible  list  and  authorize  the  termination  of  the employment  of  various numbers of such provisional appointees at stated intervals prescribed by such commission; provided, however, that  in  no case shall the employment of any such provisional appointee be continued longer  than  four  months  following the establishment of such eligible list.   4.  Successive  provisional   appointments.   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.    * 5.  Plan  for  addressing  excess  provisional   appointments.   (a) Definition.  For  purposes  of  this subdivision, "DCAS employers" shall mean (i) the city of New York; and (ii) any other entities  whose  civil service   and  examinations  are  administered  by  the  New  York  city department  of citywide administrative services ("DCAS"), and who opt to participate in this section by written notice to  the  state  commission within  thirty days of the effective date of this subdivision. Notice of such option shall constitute a delegation to DCAS to act  on  behalf  of the  entity  providing  the  notice  pursuant  to  this subdivision. All subsequent  communications  from  the  DCAS  employers  to   the   state commission  pursuant  to  this  subdivision  shall  be  provided  by the commissioner of DCAS on  behalf  of  such  employers,  and  all  notices provided  to  the  DCAS  employers pursuant to this subdivision shall be provided to the commissioner of DCAS.  (b) Plan for  provisional  employees.  Within  sixty  days  after  the effective  date  of  the chapter of the laws of two thousand seven which added this subdivision, the DCAS employers shall be required  to  submit to  the  state  commission  for  its  approval  a  single  plan,  to  be implemented within five years of its approval by the  state  commission, to  substantially comply with the time periods permitted by subdivisions one, two,  three  and  four  of  this  section.  For  purposes  of  this subdivision,  "substantial  compliance" shall mean that the total number of  competitive  class  positions  of  the  DCAS  employers  filled   by provisional   appointments   that  have  continued  beyond  the  periods permitted by subdivisions one, two, three and four of this section shall not exceed five percent. Such plan may include, but shall not be limited to, a schedule for administration of examinations and  establishment  of eligible  lists,  a  determination of additional appropriate existing or planned eligible lists that may be used, consolidation of titles through appropriate reclassification, and any other lawful and appropriate means of  implementation.  The  plan  shall  be   supported   by   appropriate documentation and explanation, and the information contained in the plan shall  be  confirmed by the commissioner of DCAS as accurate to the best of his or her knowledge, based on a reasonable inquiry by DCAS into  the facts set forth therein.  (c)  Approval  by the state commission. Within one hundred twenty days of submission of a plan by the  DCAS  employers,  the  state  commission shall  approve  the  plan, approve the plan with recommended changes, or disapprove the plan. If the state commission takes none of these actions within such period, it shall be deemed to have approved the plan. At any time when  the  state  commission  is  considering  a  plan,  the  state commission   may   request   additional   supporting   documentation  or explanation. Pending the receipt of  such  supporting  documentation  or explanation,   the   time   period  for  state  commission  approval  or disapproval of the plan  shall  be  tolled.  The  failure  of  the  DCAS employers  to  provide  materially  accurate  information, or reasonably available documentation or reasonable explanation upon  request  by  the state  commission within sixty days, shall be grounds for disapproval of the plan. If the changes recommended by the  state  commission  are  not accepted  by  the  DCAS  employers within thirty days, the plan shall be deemed disapproved. The state commission shall approve the  plan  if  it finds  that,  consistent  with  available  resources  and  the  need for continuity in public services, such submitted plan provides a timely and practicable implementation schedule in furtherance of  the  purposes  of this  subdivision.  In the event that a plan has been disapproved, a new or modified plan shall be submitted to the state commission within sixty days. The state commission shall within ninety  days  thereafter  either approve  the  new  or  modified  plan, approve the plan with recommended  changes or disapprove the new or modified plan. If the  changes  to  the new  or  modified  plan  recommended  by  the  state  commission are not accepted by the DCAS employers within thirty days,  the  plan  shall  be deemed  disapproved. If the state commission takes none of these actions within such period, it shall be deemed to have approved the plan. At any time when the state commission is considering a new  or  modified  plan, the  state commission may request additional supporting documentation or explanation.  Pending  receipt  of  such  supporting  documentation   or explanation,   the   time   period  for  state  commission  approval  or disapproval of such new  plan  or  modification  shall  be  tolled.  The failure   of   the   DCAS  employers  to  provide  reasonably  available documentation or reasonable  explanation  in  relation  to  the  new  or modified  plan  upon  request by the state commission within thirty days shall  be  grounds  for  disapproval  of  the  new  or  modified   plan. Notwithstanding  any  inconsistent  provision  of this subdivision, this subdivision shall no longer be in force and effect if no plan  has  been approved  by  the  state  commission  within  eighteen  months  from the effective date of the chapter of the laws of two  thousand  seven  which added this subdivision.  (c-1)  Revised plan for provisional employees. Within sixty days after the effective date of  this  paragraph,  the  DCAS  employers  shall  be required  to  submit  to  the state commission for its approval a single comprehensive revision of the plan prepared pursuant to paragraph (b) of this subdivision, to be implemented  by  November  first,  two  thousand sixteen,  to  further reduce the number of provisional appointments that have continued beyond the periods permitted by  subdivisions  one,  two, three  and  four  of  this  section.  Such  revised plan may contain any elements or means of implementation authorized by paragraph (b) of  this subdivision.   The  revised  plan  shall  be  supported  by  appropriate documentation and explanation, and the information contained in the plan shall be confirmed by the commissioner of DCAS as accurate to  the  best of  his or her knowledge, based on a reasonable inquiry by DCAS into the facts set forth therein. Within sixty days of  the  submission  of  such plan,  the  state  commission  shall  approve  the revised plan, with or without recommended changes, or  disapprove  it.  The  approval  process shall  otherwise  conform  to the timeframes and procedures set forth in paragraph (c) of  this  subdivision.  Notwithstanding  any  inconsistent provision  of  this  subdivision, this subdivision shall no longer be in force and effect if no revised plan  has  been  approved  by  the  state commission  within  eighteen  months  from  the  effective  date of this paragraph.  (c-2) Qualified incumbent examination.  (i) DCAS may administer a qualified incumbent examination ("QIE")  for appointment  to any competitive title, consistent with subparagraph (ii) of this paragraph, exclusively to current employees who, at the time  of application  to take such examination, have served provisionally in such title for two or more years. Provided  that  the  employee  taking  such examination  shall  meet  the  minimum  educational  and other specified requirements set forth in the notice of examination  for  the  title  in which  he or she currently serves, as established by the DCAS employers, an employee with two years of provisional service may be appointed  from the list resulting from such examination. Neither provisional service in a  title performed by an employee during a period of time in which there existed an appropriate eligible list of candidates for the title, unless such list was not  adequate  to  fill  all  positions  then  held  on  a provisional   basis   or   was   exhausted   immediately  following  its establishment, nor service in  a  temporary  title  established  pending  proposed   reclassification   shall  count  toward  such  two  years  of provisional service.  (ii)  DCAS  may  administer  a  QIE only for those titles that are set forth in section four of chapter four hundred sixty-seven of the laws of two thousand sixteen, in section five of chapter four  hundred  nineteen of  the laws of two thousand eighteen, or in section five of the chapter of the laws of two thousand twenty-one that amended  this  subparagraph; provided,  however, that DCAS shall not administer more than one QIE per title.  (iii) DCAS shall not administer a QIE for any title for which  (a)  an examination  has  been  administered  but  an eligible list has not been established, or (b) there exists an eligible list resulting from an open competitive examination that contains three or more individuals.  (iv) A list resulting from a promotional examination for a title  must be  exhausted  before  a list resulting from a QIE for that title may be established.  (v) A list resulting from a QIE must be exhausted before  an  eligible list  resulting  from an open competitive examination for that title may be certified to any agency.  (vi) A person appointed from a list resulting  from  a  QIE  shall  be credited  with  the  time  he  or she served provisionally in that title toward the probationary period for that title up to a  maximum  of  nine months.  (c-3)  Revised plan for provisional employees. Within sixty days after the effective date of  this  paragraph,  the  DCAS  employers  shall  be required  to  submit  to  the state commission for its approval a single comprehensive revision of the plan prepared pursuant to paragraph (b) of this subdivision, to be implemented  by  November  first,  two  thousand eighteen,  to further reduce the number of provisional appointments that have continued beyond the periods otherwise permitted by  this  section. Such  revised  plan  may  additionally  contain any elements or means of implementation authorized by paragraph  (b)  of  this  subdivision.  The revised  plan  shall  be  supported  by  appropriate  documentation  and explanation,  and  the  information  contained  in  the  plan  shall  be confirmed  by the commissioner of DCAS as accurate to the best of his or her knowledge, based on a reasonable inquiry by DCAS into the facts  set forth  therein.  Within  sixty  days of the submission of such plan, the state commission  shall  approve  the  revised  plan,  with  or  without recommended  changes,  or  disapprove  it.  The  approval  process shall otherwise  conform  to  the  timeframes  and  procedures  set  forth  in paragraph  (c)  of  this  subdivision.  Notwithstanding any inconsistent provision of this subdivision, this subdivision shall no  longer  be  in force  and  effect  if  no  revised  plan has been approved by the state commission within eighteen  months  from  the  effective  date  of  this paragraph.  (c-4) Additional plan revision for provisional employees. Within sixty days  after  the  effective  date  of this paragraph, the DCAS employers shall be required to submit to the state commission for its  approval  a single comprehensive revision of the plan prepared pursuant to paragraph (b) of this subdivision, to be implemented by December thirty-first, two thousand  twenty-one,  to  further  reduce  the  number  of  provisional appointments that have continued beyond the periods otherwise  permitted by this section. Such revised plan may additionally contain any elements or   means  of  implementation  authorized  by  paragraph  (b)  of  this subdivision.  The  revised  plan  shall  be  supported  by   appropriate documentation and explanation, and the information contained in the plan shall  be  confirmed by the commissioner of DCAS as accurate to the best of his or her knowledge, based on a reasonable inquiry by DCAS into  the  facts  set  forth  therein.  Within sixty days of the submission of such plan, the state commission shall  approve  the  revised  plan,  with  or without  recommended  changes,  or  disapprove  it. The approval process shall  otherwise  conform  to the timeframes and procedures set forth in paragraph (c) of  this  subdivision.  Notwithstanding  any  inconsistent provision  of  this  subdivision, this subdivision shall no longer be in force and effect if no revised plan  has  been  approved  by  the  state commission  within  eighteen  months  from  the  effective  date of this paragraph.  (c-5) Additional plan revision for provisional employees. Within sixty days after the effective date of the chapter of the laws of two thousand twenty-one that added  this  paragraph,  the  DCAS  employers  shall  be required  to  submit  to  the state commission for its approval a single comprehensive revision of the plan prepared pursuant to paragraph (b) of this subdivision,  to  be  implemented  by  December  thirty-first,  two thousand  twenty-three,  to  further  reduce  the  number of provisional appointments that have continued beyond the periods otherwise  permitted by  this  section,  provided  that  the  percentage goal for substantial compliance otherwise specified  in  such  paragraph  shall  be  six  and one-half  percent.  Such  revised  plan  may  additionally  contain  any elements or means of implementation authorized by paragraph (b) of  this subdivision.   The  revised  plan  shall  be  supported  by  appropriate documentation and explanation, and the information contained in the plan shall be confirmed by the commissioner of DCAS as accurate to  the  best of  his or her knowledge, based on a reasonable inquiry by DCAS into the facts set forth therein. Within sixty days of  the  submission  of  such plan,  the  state  commission  shall  approve  the revised plan, with or without recommended changes, or  disapprove  it.  The  approval  process shall  otherwise  conform  to the timeframes and procedures set forth in paragraph (c) of  this  subdivision.  Notwithstanding  any  inconsistent provision  of  this  subdivision, this subdivision shall no longer be in force and effect if no revised plan  has  been  approved  by  the  state commission  within  eighteen  months  from  the  effective  date of this paragraph.  (d) Modifications of the plan. During the course of  implementing  the plan  developed, approved and revised in accordance with paragraphs (b), (c), (c-1), (c-3), (c-4) and (c-5) of  this  subdivision,  if  the  DCAS employers  determine that there is a need to modify the plan, they shall submit a request for modification of the plan to the  state  commission. Such   request   shall   detail   the  circumstances  that  have  arisen necessitating the request,  including  but  not  limited  to  unforeseen demands  upon resources, unforeseen projected impacts upon the provision of public services, or a finding that implementation of any part of  the plan  is impracticable, unduly burdensome or otherwise likely to prevent the successful implementation of the plan or  any  aspect  thereof.  The state  commission  shall  act  upon  the request for modification within sixty days. The state commission  may  in  its  discretion  approve  the modification,  approve  the  modification  with  recommended changes, or disapprove the  modification;  provided,  however,  that  if  the  state commission  takes  no  action  within such period, it shall be deemed to have approved the modification, and provided further that if the changes recommended by the  state  commission  are  not  accepted  by  the  DCAS employers   within   thirty  days,  the  modification  shall  be  deemed disapproved.  Notwithstanding  any  inconsistent   provision   of   this paragraph,   where   a  modification  is  insubstantial,  and  will  not materially affect the ability of the DCAS employers to reduce the number of provisional appointments in accordance with paragraph  (c-1),  (c-3), (c-4)  or (c-5), as applicable, of this subdivision, DCAS may so certify  and the modification may be implemented and shall be filed by DCAS  with the  state  commission  within  five  business days. In the event that a request for modification is disapproved, the plan previously  in  effect shall remain in effect, provided that the DCAS employers may at any time submit  a  new proposed modification. Any modification approved pursuant to this paragraph may extend the duration of a plan to a  date  no  more than  one  year beyond the two-year period authorized by paragraph (c-3) of this subdivision.  (e) Plan implementation. Upon approval of a plan or  any  modification thereof,  such  plan or modification shall be binding upon, and shall be implemented by, the DCAS employers. If the  state  commission  concludes that the DCAS employers have failed to comply with their plan, the state commission  shall provide them with notice through DCAS of such finding, including whether the failure is alleged to be persistent and  material, and  thirty days to respond. If, upon review of such response, the state commission  concludes   that   the   DCAS   employers   are   still   in non-compliance,  it  shall so inform DCAS and may then in its discretion take such measures as it deems  necessary  to  bring  about  compliance, including  precluding  one  or  more  DCAS  employers  from  making  any additional provisional appointments to positions directly related to the finding of non-compliance, or  taking  such  other  measures,  including seeking equitable relief in a court action, as may be authorized by law. In  the  event that the state commission has informed DCAS of a specific finding of persistent and material non-compliance, then, in addition  to any  other  authorized  measures,  it  may (i) preclude one or more DCAS employers  from  making  any  additional  provisional  appointments   to positions  directly  related  to  the finding of persistent and material non-compliance, or to positions in  the  particular  city  agencies,  or public  entities  other  than  the  city,  in  which  the persistent and material non-compliance has been found, or (ii) revoke its  approval  of the  plan,  or any part thereof. In the event of revocation of the plan, this subdivision shall no  longer  have  any  force  and  effect.  Where applicable,  enforcement  remedies  utilized  by  the  state  commission pursuant to this paragraph shall be  directed  at  the  particular  city agency,  or public entity other than the city, that the state commission finds to have caused the finding of non-compliance.  (f) Time limitation. Notwithstanding  any  inconsistent  provision  of this chapter or any other law or rule to the contrary, the provisions of subdivision  two  of  this section shall not apply to the DCAS employers upon the effective date of chapter five of  the  laws  of  two  thousand eight,  and during the timely submission, approval and implementation of a  plan  in  accordance  with  paragraphs  (b),  (c)  and  (e)  of  this subdivision,  and  of revised plans in accordance with paragraphs (c-1), (c-3),  (c-4)  and  (c-5)  of  this  subdivision.  The   provisions   of subdivision  two  of this section shall be applicable to any provisional employee serving in a position for which an  appropriate  eligible  list has been established pursuant to such plan or revised plans, unless such list  is  not  adequate to fill all positions then held on a provisional basis or is exhausted immediately following its establishment.  (g) Agreements governing disciplinary procedures. Notwithstanding  any inconsistent  provision  of this chapter or any other law or rule to the contrary, any DCAS employer and an employee organization, as  such  term is  defined  in  article  fourteen  of  this  chapter,  may  enter  into agreements to provide disciplinary procedures applicable to  provisional appointees  or  categories  thereof  who  have  served  for  a period of twenty-four months or more in a position which is  covered  by  such  an agreement.   No   such  provisional  employee  shall  be  deemed  to  be permanently  appointed  under   such   circumstances,   nor   may   such  disciplinary  procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments  from  an  appropriate eligible list or in accordance with any other provision of law. Any such agreement  may apply upon the effective date of chapter five of the laws of two thousand eight, and during the timely  submission,  approval  and implementation  of a plan in accordance with paragraphs (b), (c) and (e) of this subdivision, and of revised plans in accordance with  paragraphs (c-1),  (c-3),  (c-4) and (c-5) of this subdivision, and shall not apply to  any  provisional  employee  serving  in  a  position  for  which  an appropriate  eligible  list  has  been  established  pursuant  to a plan approved in accordance with this subdivision unless  such  list  is  not adequate  to  fill  all positions then held on a provisional basis or is exhausted immediately following its establishment.  (h) (i) If the DCAS employers are not in substantial  compliance  with the  time  periods permitted by subdivisions one, two, three and four of this section by December thirty-first, two thousand twenty-three, as set forth in the report submitted by DCAS pursuant to subparagraph  (ii)  of this  paragraph, then an advisory workgroup for provisional appointments in the city of New York ("advisory workgroup") shall be established. The advisory workgroup shall consist of six members, one of  whom  shall  be appointed by the governor, one of whom shall be appointed by the speaker of  the  assembly,  one  of  whom  shall  be  appointed by the temporary president of the senate, two of whom shall be appointed by the mayor  of the  city  of  New  York,  including  one  recommended  by  the citywide bargaining representative, and one of whom shall  be  appointed  by  the commissioner  of the New York city department of citywide administrative services (DCAS). The advisory workgroup shall be  chaired  by  a  member designated  by  the  mayor.  The  advisory workgroup shall submit to the governor, the state legislature and the mayor a single recommended  plan for  the  DCAS  employers  to substantially comply with the time periods permitted by subdivisions one, two, three and four of this  section,  to be adopted by or pursuant to state legislation. For the purposes of this paragraph,  "substantial  compliance"  shall  have  the  same meaning as provided in paragraph (b),  as  modified  by  paragraph  (c-5)  of  this subdivision. Such recommended plan may include, but shall not be limited to,  a  schedule for administration of examinations and establishment of eligible lists, a determination of additional  appropriate  existing  or planned eligible lists that may be used, consolidation of titles through appropriate reclassification, and any other lawful and appropriate means of  implementation. The recommended plan shall to the extent practicable be supported by appropriate documentation and explanation.  (ii) DCAS shall submit a progress report to the governor,  speaker  of the  assembly,  temporary  president  of the senate and the mayor of the city of New York no  later  than  December  thirty-first,  two  thousand twenty-two.    Such  report shall contain numbers that are as current as practicable  and  shall  include  the  total   number   of   provisional appointments remaining, the number of provisional appointments that have been  reduced, the number of provisional appointments that still need to be reduced in order to achieve substantial  compliance  as  provided  by paragraph  (b)  of  this  subdivision,  and  a statement of whether DCAS believes substantial compliance with the timeframes  permitted  by  this section as provided by paragraph (b) of this subdivision can be achieved by December thirty-first, two thousand twenty-three.   * NB Repealed December 31, 2023   * 6.   Costs.  For  purposes  of  this  subdivision,  the  term  "DCAS employers" shall have the same  meaning  as  that  term  is  defined  in subdivision five of this section. The department is hereby authorized to charge  the  city of New York for the services and costs associated with  approving and monitoring any plan submitted by the  DCAS  employers.  No later  than December first, two thousand eight and each year thereafter, the department shall estimate the amount necessary, for the entirety  of that  state  fiscal year, to reimburse the department's costs related to the review of such plan, and shall submit the  estimated  costs  to  the department  of  city  administrative  services not to exceed six hundred thousand dollars. The city of New York shall pay such estimated costs to the department by December fifteenth, two thousand eight and  each  year thereafter.  To  the  extent,  in  any  year, actual costs for the state fiscal year differ from those estimated by the department  and  paid  by the  city  of New York, the variance shall be reflected as an additional charge  or  a  credit  within  the  estimated  costs  submitted  by  the department in the following year, so long as the total amount payable to the  department for any year's cost does not exceed six hundred thousand dollars. The city of New York may charge any DCAS employer that  is  not an  agency  of  the city of New York a share of the costs the department charged to the city under this subdivision. The percentage of costs that may be charged to any DCAS employer shall be determined  based  on  that employer's  share  of  the  total  number of competitive class positions filled  by  provisional  appointments  reflected  in  the  most   recent department   of   city  administrative  services  plan  submitted  under subdivision five of this section. In the event  the  city  of  New  York shall  not  have  made such required payments by December fifteenth, two thousand eight and each year thereafter, the commissioner shall  certify the  unpaid  amount to the state comptroller, and the comptroller shall, to the extent not otherwise prohibited by law, withhold such amount from the next succeeding payment of per capita assistance to  be  apportioned to the city of New York.   * NB Repealed December 31, 2023