Qualifying for appointment to a position

Qualifying for appointment to a position Thorsen v Nassau County Civil Service Commission, NYS Supreme Court, [Not selected for publication in the Official Reports] The Thorsen decision set out the proposition that a Civil Service Commission will be bound by its determination concerning the duties that are properly performed by the incumbent of any given title. This could be significant if its subsequent rulings are inconsistent with its earlier decision concerning the duties of the position in question as the Thorsen decision demonstrates. George C. Thorsen was appointed to the non-competitive position of Assistant to the Director of Probation of the Nassau County Department of Probation on May 10, 1996 following a series of promotions within the Nassau County Department of Probation. In 1997, while Thorsen was serving as Assistant to the Director of Probation, the position was reallocated two grades higher based on his performing duties that "encompasses both the areas of law enforcement management, administration, liaison, planning and research." The Nassau County Civil Service Commission was notified of the reallocation and voiced no objection to the change in either the duties of the position nor the salary grade — two grades higher — to which the position was reallocated. As to the authority of a municipal civil service commission in this area, Section 20.1 of the Civil Service Law provides that such a commission "shall prescribe, amend and enforce suitable rules … including rules for the jurisdictional classification of the offices and employments in the classified service under its jurisdiction, [and] for the position classification of such offices and employments…." Section 2.11 of the Civil Service Law defines the term "position classification" to mean "a grouping together, under common and descriptive titles … and scope of their duties and responsibilities and in the qualification requirements therefore;" A municipal commission, however, does not have statutory authority to allocate positions subject to its jurisdiction to a salary grade as Section 20.1 also provides that "[n]othing in this chapter … shall be construed to require that … the salary grade to which a position in any jurisdictional class is allocated be specified in such rules." In August of 1999 the noncompetitive class position of Nassau County Director of Probation became vacant. The Nassau County Executive, Thomas Gulotta, nominated Thorsen for permanent appointment to the Director vacancy and certified his name to the Commission for approval. The Commission disapproved the appointment on the grounds that Thorsen "lacked managerial experience" and was therefore unqualified for the position. Thorsen's appeal was rejected by the Commission on the grounds that Thorsen "does not posses the five years of managerial experience required for the [Director] position." The Commission's rationale: The defined duties of the title "Assistant to the Director of Probation" do not include the defined managerial experience set forth in the training and experience requirements of the title "Director of Probation". State Supreme Court Justice Bruce D. Alpert decided that the Commission's position "is untenable in light of its failure to challenge the 1997 upgrade of [Thorsen's] position as Assistant to the Director of Probation which delineated the position's attendant defined duties and justification." By failing to challenge the upgrade, said the court, the Commission "tacitly recognized that the position of Assistant to the Director of Probation encompassed the areas of law enforcement management, administration, liaison planning and research in the administration of the Probation Department. Accordingly, it cannot now, in good faith, argue that [Thorsen's] managerial responsibilities and experience as set forth hereinabove were accomplished "out-of-title", as that term is defined in Civil Service Law Section 61.2." Justice Alpert ruled that the Commission's determination that Thorsen was not qualified for appointment to the position of Director of Probation due to a purported lack of sufficient managerial experience was "without justification, factual predicate or sound basis in reason, and, thus, was both arbitrary and capricious." The remedy: Justice Alpert directed the Commission to process Thorsen's application for appointment to the Director position.

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