N.Y. Civ. Serv. Law § 65

§ 65. Provisional appointments. 1. Provisional appointments\nauthorized. Whenever there is no appropriate eligible list available\nfor filling a vacancy in the competitive class, the appointing officer\nmay nominate a person to the state civil service department or municipal\ncommission for non-competitive examination, and if such nominee shall be\ncertified by such department or municipal commission as qualified after\nsuch non-competitive examination, he may be appointed provisionally to\nfill such vacancy until a selection and appointment can be made after\ncompetitive examination. Such non-competitive examination may consist of\na review and evaluation of the training, experience and other\nqualifications of the nominee, without written, oral or other\nperformance tests.\n 2. Time limitation on provisional appointments. No provisional\nappointment shall continue for a period in excess of nine months. The\ncivil service department shall for competitive positions within its\njurisdiction, and a municipal civil service commission shall for\ncompetitive positions within its jurisdiction, order a civil service\nexamination for any position held by provisional appointment for a\nperiod of one month and such department or commission shall conduct a\ncivil service examination, or see that such an examination is conducted,\nas soon as practicable thereafter, in order to prevent the provisional\nappointment from continuing for a period in excess of nine months.\n 3. Termination of provisional appointments. A provisional appointment\nto any position shall be terminated within two months following the\nestablishment of an appropriate eligible list for filling vacancies in\nsuch positions; provided, however, that where there are a large number\nof provisional appointees in any department or agency in the service of\nthe state or any civil division thereof to be replaced by permanent\nappointees from a newly established eligible list, and the appointing\nofficer or body deems that the termination of the employment of all such\nprovisional appointees within two months following establishment of such\nlist would disrupt or impair essential public services, evidence thereof\nmay be presented to the civil service department or municipal commission\nhaving jurisdiction which, after due inquiry, and upon finding that it\nis in the best interest of the public service, may waive the provisions\nof this subdivision requiring the termination of the employment of\nprovisional appointees within two months following the establishment of\nan appropriate eligible list and authorize the termination of the\nemployment of various numbers of such provisional appointees at stated\nintervals prescribed by such commission; provided, however, that in no\ncase shall the employment of any such provisional appointee be continued\nlonger than four months following the establishment of such eligible\nlist.\n 4. Successive provisional appointments. Successive provisional\nappointments shall not be made to the same position after the expiration\nof the authorized period of the original provisional appointment to such\nposition; provided, however, that where an examination for a position or\ngroup of positions fails to produce a list adequate to fill all\npositions then held on a provisional basis, or where such list is\nexhausted immediately following its establishment, a new provisional\nappointment may be made to any such position remaining unfilled by\npermanent appointment, and such new provisional appointment may, in the\ndiscretion of the appointing authority, be given to a current or former\nprovisional appointee in such position, except that a current or former\nprovisional appointee who becomes eligible for permanent appointment to\nany such position shall, if he is then to be continued in or appointed\nto any such position be afforded permanent appointment to such position.\n * 5. Plan for addressing excess provisional appointments. (a)\nDefinition. For purposes of this subdivision, "DCAS employers" shall\nmean (i) the city of New York; and (ii) any other entities whose civil\nservice and examinations are administered by the New York city\ndepartment of citywide administrative services ("DCAS"), and who opt to\nparticipate in this section by written notice to the state commission\nwithin thirty days of the effective date of this subdivision. Notice of\nsuch option shall constitute a delegation to DCAS to act on behalf of\nthe entity providing the notice pursuant to this subdivision. All\nsubsequent communications from the DCAS employers to the state\ncommission pursuant to this subdivision shall be provided by the\ncommissioner of DCAS on behalf of such employers, and all notices\nprovided to the DCAS employers pursuant to this subdivision shall be\nprovided to the commissioner of DCAS.\n (b) Plan for provisional employees. Within sixty days after the\neffective date of the chapter of the laws of two thousand seven which\nadded this subdivision, the DCAS employers shall be required to submit\nto the state commission for its approval a single plan, to be\nimplemented within five years of its approval by the state commission,\nto substantially comply with the time periods permitted by subdivisions\none, two, three and four of this section. For purposes of this\nsubdivision, "substantial compliance" shall mean that the total number\nof competitive class positions of the DCAS employers filled by\nprovisional appointments that have continued beyond the periods\npermitted by subdivisions one, two, three and four of this section shall\nnot exceed five percent. Such plan may include, but shall not be limited\nto, a schedule for administration of examinations and establishment of\neligible lists, a determination of additional appropriate existing or\nplanned eligible lists that may be used, consolidation of titles through\nappropriate reclassification, and any other lawful and appropriate means\nof implementation. The plan shall be supported by appropriate\ndocumentation and explanation, and the information contained in the plan\nshall be confirmed by the commissioner of DCAS as accurate to the best\nof his or her knowledge, based on a reasonable inquiry by DCAS into the\nfacts set forth therein.\n (c) Approval by the state commission. Within one hundred twenty days\nof submission of a plan by the DCAS employers, the state commission\nshall approve the plan, approve the plan with recommended changes, or\ndisapprove the plan. If the state commission takes none of these actions\nwithin such period, it shall be deemed to have approved the plan. At any\ntime when the state commission is considering a plan, the state\ncommission may request additional supporting documentation or\nexplanation. Pending the receipt of such supporting documentation or\nexplanation, the time period for state commission approval or\ndisapproval of the plan shall be tolled. The failure of the DCAS\nemployers to provide materially accurate information, or reasonably\navailable documentation or reasonable explanation upon request by the\nstate commission within sixty days, shall be grounds for disapproval of\nthe plan. If the changes recommended by the state commission are not\naccepted by the DCAS employers within thirty days, the plan shall be\ndeemed disapproved. The state commission shall approve the plan if it\nfinds that, consistent with available resources and the need for\ncontinuity in public services, such submitted plan provides a timely and\npracticable implementation schedule in furtherance of the purposes of\nthis subdivision. In the event that a plan has been disapproved, a new\nor modified plan shall be submitted to the state commission within sixty\ndays. The state commission shall within ninety days thereafter either\napprove the new or modified plan, approve the plan with recommended\nchanges or disapprove the new or modified plan. If the changes to the\nnew or modified plan recommended by the state commission are not\naccepted by the DCAS employers within thirty days, the plan shall be\ndeemed disapproved. If the state commission takes none of these actions\nwithin such period, it shall be deemed to have approved the plan. At any\ntime when the state commission is considering a new or modified plan,\nthe state commission may request additional supporting documentation or\nexplanation. Pending receipt of such supporting documentation or\nexplanation, the time period for state commission approval or\ndisapproval of such new plan or modification shall be tolled. The\nfailure of the DCAS employers to provide reasonably available\ndocumentation or reasonable explanation in relation to the new or\nmodified plan upon request by the state commission within thirty days\nshall be grounds for disapproval of the new or modified plan.\nNotwithstanding any inconsistent provision of this subdivision, this\nsubdivision shall no longer be in force and effect if no plan has been\napproved by the state commission within eighteen months from the\neffective date of the chapter of the laws of two thousand seven which\nadded this subdivision.\n (c-1) Revised plan for provisional employees. Within sixty days after\nthe effective date of this paragraph, the DCAS employers shall be\nrequired to submit to the state commission for its approval a single\ncomprehensive revision of the plan prepared pursuant to paragraph (b) of\nthis subdivision, to be implemented by November first, two thousand\nsixteen, to further reduce the number of provisional appointments that\nhave continued beyond the periods permitted by subdivisions one, two,\nthree and four of this section. Such revised plan may contain any\nelements or means of implementation authorized by paragraph (b) of this\nsubdivision. The revised plan shall be supported by appropriate\ndocumentation and explanation, and the information contained in the plan\nshall be confirmed by the commissioner of DCAS as accurate to the best\nof his or her knowledge, based on a reasonable inquiry by DCAS into the\nfacts set forth therein. Within sixty days of the submission of such\nplan, the state commission shall approve the revised plan, with or\nwithout recommended changes, or disapprove it. The approval process\nshall otherwise conform to the timeframes and procedures set forth in\nparagraph (c) of this subdivision. Notwithstanding any inconsistent\nprovision of this subdivision, this subdivision shall no longer be in\nforce and effect if no revised plan has been approved by the state\ncommission within eighteen months from the effective date of this\nparagraph.\n (c-2) Qualified incumbent examination.\n (i) DCAS may administer a qualified incumbent examination ("QIE") for\nappointment to any competitive title, consistent with subparagraph (ii)\nof this paragraph, exclusively to current employees who, at the time of\napplication to take such examination, have served provisionally in such\ntitle for two or more years. Provided that the employee taking such\nexamination shall meet the minimum educational and other specified\nrequirements set forth in the notice of examination for the title in\nwhich he or she currently serves, as established by the DCAS employers,\nan employee with two years of provisional service may be appointed from\nthe list resulting from such examination. Neither provisional service in\na title performed by an employee during a period of time in which there\nexisted an appropriate eligible list of candidates for the title, unless\nsuch list was not adequate to fill all positions then held on a\nprovisional basis or was exhausted immediately following its\nestablishment, nor service in a temporary title established pending\nproposed reclassification shall count toward such two years of\nprovisional service.\n (ii) DCAS may administer a QIE only for those titles that are set\nforth in section four of chapter four hundred sixty-seven of the laws of\ntwo thousand sixteen, in section five of chapter four hundred nineteen\nof the laws of two thousand eighteen, or in section five of the chapter\nof the laws of two thousand twenty-one that amended this subparagraph;\nprovided, however, that DCAS shall not administer more than one QIE per\ntitle.\n (iii) DCAS shall not administer a QIE for any title for which (a) an\nexamination has been administered but an eligible list has not been\nestablished, or (b) there exists an eligible list resulting from an open\ncompetitive examination that contains three or more individuals.\n (iv) A list resulting from a promotional examination for a title must\nbe exhausted before a list resulting from a QIE for that title may be\nestablished.\n (v) A list resulting from a QIE must be exhausted before an eligible\nlist resulting from an open competitive examination for that title may\nbe certified to any agency.\n (vi) A person appointed from a list resulting from a QIE shall be\ncredited with the time he or she served provisionally in that title\ntoward the probationary period for that title up to a maximum of nine\nmonths.\n (c-3) Revised plan for provisional employees. Within sixty days after\nthe effective date of this paragraph, the DCAS employers shall be\nrequired to submit to the state commission for its approval a single\ncomprehensive revision of the plan prepared pursuant to paragraph (b) of\nthis subdivision, to be implemented by November first, two thousand\neighteen, to further reduce the number of provisional appointments that\nhave continued beyond the periods otherwise permitted by this section.\nSuch revised plan may additionally contain any elements or means of\nimplementation authorized by paragraph (b) of this subdivision. The\nrevised plan shall be supported by appropriate documentation and\nexplanation, and the information contained in the plan shall be\nconfirmed by the commissioner of DCAS as accurate to the best of his or\nher knowledge, based on a reasonable inquiry by DCAS into the facts set\nforth therein. Within sixty days of the submission of such plan, the\nstate commission shall approve the revised plan, with or without\nrecommended changes, or disapprove it. The approval process shall\notherwise conform to the timeframes and procedures set forth in\nparagraph (c) of this subdivision. Notwithstanding any inconsistent\nprovision of this subdivision, this subdivision shall no longer be in\nforce and effect if no revised plan has been approved by the state\ncommission within eighteen months from the effective date of this\nparagraph.\n (c-4) Additional plan revision for provisional employees. Within sixty\ndays after the effective date of this paragraph, the DCAS employers\nshall be required to submit to the state commission for its approval a\nsingle comprehensive revision of the plan prepared pursuant to paragraph\n(b) of this subdivision, to be implemented by December thirty-first, two\nthousand twenty-one, to further reduce the number of provisional\nappointments that have continued beyond the periods otherwise permitted\nby this section. Such revised plan may additionally contain any elements\nor means of implementation authorized by paragraph (b) of this\nsubdivision. The revised plan shall be supported by appropriate\ndocumentation and explanation, and the information contained in the plan\nshall be confirmed by the commissioner of DCAS as accurate to the best\nof his or her knowledge, based on a reasonable inquiry by DCAS into the\nfacts set forth therein. Within sixty days of the submission of such\nplan, the state commission shall approve the revised plan, with or\nwithout recommended changes, or disapprove it. The approval process\nshall otherwise conform to the timeframes and procedures set forth in\nparagraph (c) of this subdivision. Notwithstanding any inconsistent\nprovision of this subdivision, this subdivision shall no longer be in\nforce and effect if no revised plan has been approved by the state\ncommission within eighteen months from the effective date of this\nparagraph.\n (c-5) Additional plan revision for provisional employees. Within sixty\ndays after the effective date of the chapter of the laws of two thousand\ntwenty-one that added this paragraph, the DCAS employers shall be\nrequired to submit to the state commission for its approval a single\ncomprehensive revision of the plan prepared pursuant to paragraph (b) of\nthis subdivision, to be implemented by December thirty-first, two\nthousand twenty-three, to further reduce the number of provisional\nappointments that have continued beyond the periods otherwise permitted\nby this section, provided that the percentage goal for substantial\ncompliance otherwise specified in such paragraph shall be six and\none-half percent. Such revised plan may additionally contain any\nelements or means of implementation authorized by paragraph (b) of this\nsubdivision. The revised plan shall be supported by appropriate\ndocumentation and explanation, and the information contained in the plan\nshall be confirmed by the commissioner of DCAS as accurate to the best\nof his or her knowledge, based on a reasonable inquiry by DCAS into the\nfacts set forth therein. Within sixty days of the submission of such\nplan, the state commission shall approve the revised plan, with or\nwithout recommended changes, or disapprove it. The approval process\nshall otherwise conform to the timeframes and procedures set forth in\nparagraph (c) of this subdivision. Notwithstanding any inconsistent\nprovision of this subdivision, this subdivision shall no longer be in\nforce and effect if no revised plan has been approved by the state\ncommission within eighteen months from the effective date of this\nparagraph.\n (d) Modifications of the plan. During the course of implementing the\nplan developed, approved and revised in accordance with paragraphs (b),\n(c), (c-1), (c-3), (c-4) and (c-5) of this subdivision, if the DCAS\nemployers determine that there is a need to modify the plan, they shall\nsubmit a request for modification of the plan to the state commission.\nSuch request shall detail the circumstances that have arisen\nnecessitating the request, including but not limited to unforeseen\ndemands upon resources, unforeseen projected impacts upon the provision\nof public services, or a finding that implementation of any part of the\nplan is impracticable, unduly burdensome or otherwise likely to prevent\nthe successful implementation of the plan or any aspect thereof. The\nstate commission shall act upon the request for modification within\nsixty days. The state commission may in its discretion approve the\nmodification, approve the modification with recommended changes, or\ndisapprove the modification; provided, however, that if the state\ncommission takes no action within such period, it shall be deemed to\nhave approved the modification, and provided further that if the changes\nrecommended by the state commission are not accepted by the DCAS\nemployers within thirty days, the modification shall be deemed\ndisapproved. Notwithstanding any inconsistent provision of this\nparagraph, where a modification is insubstantial, and will not\nmaterially affect the ability of the DCAS employers to reduce the number\nof provisional appointments in accordance with paragraph (c-1), (c-3),\n(c-4) or (c-5), as applicable, of this subdivision, DCAS may so certify\nand the modification may be implemented and shall be filed by DCAS with\nthe state commission within five business days. In the event that a\nrequest for modification is disapproved, the plan previously in effect\nshall remain in effect, provided that the DCAS employers may at any time\nsubmit a new proposed modification. Any modification approved pursuant\nto this paragraph may extend the duration of a plan to a date no more\nthan one year beyond the two-year period authorized by paragraph (c-3)\nof this subdivision.\n (e) Plan implementation. Upon approval of a plan or any modification\nthereof, such plan or modification shall be binding upon, and shall be\nimplemented by, the DCAS employers. If the state commission concludes\nthat the DCAS employers have failed to comply with their plan, the state\ncommission shall provide them with notice through DCAS of such finding,\nincluding whether the failure is alleged to be persistent and material,\nand thirty days to respond. If, upon review of such response, the state\ncommission concludes that the DCAS employers are still in\nnon-compliance, it shall so inform DCAS and may then in its discretion\ntake such measures as it deems necessary to bring about compliance,\nincluding precluding one or more DCAS employers from making any\nadditional provisional appointments to positions directly related to the\nfinding of non-compliance, or taking such other measures, including\nseeking equitable relief in a court action, as may be authorized by law.\nIn the event that the state commission has informed DCAS of a specific\nfinding of persistent and material non-compliance, then, in addition to\nany other authorized measures, it may (i) preclude one or more DCAS\nemployers from making any additional provisional appointments to\npositions directly related to the finding of persistent and material\nnon-compliance, or to positions in the particular city agencies, or\npublic entities other than the city, in which the persistent and\nmaterial non-compliance has been found, or (ii) revoke its approval of\nthe plan, or any part thereof. In the event of revocation of the plan,\nthis subdivision shall no longer have any force and effect. Where\napplicable, enforcement remedies utilized by the state commission\npursuant to this paragraph shall be directed at the particular city\nagency, or public entity other than the city, that the state commission\nfinds to have caused the finding of non-compliance.\n (f) Time limitation. Notwithstanding any inconsistent provision of\nthis chapter or any other law or rule to the contrary, the provisions of\nsubdivision two of this section shall not apply to the DCAS employers\nupon the effective date of chapter five of the laws of two thousand\neight, and during the timely submission, approval and implementation of\na plan in accordance with paragraphs (b), (c) and (e) of this\nsubdivision, and of revised plans in accordance with paragraphs (c-1),\n(c-3), (c-4) and (c-5) of this subdivision. The provisions of\nsubdivision two of this section shall be applicable to any provisional\nemployee serving in a position for which an appropriate eligible list\nhas been established pursuant to such plan or revised plans, unless such\nlist is not adequate to fill all positions then held on a provisional\nbasis or is exhausted immediately following its establishment.\n (g) Agreements governing disciplinary procedures. Notwithstanding any\ninconsistent provision of this chapter or any other law or rule to the\ncontrary, any DCAS employer and an employee organization, as such term\nis defined in article fourteen of this chapter, may enter into\nagreements to provide disciplinary procedures applicable to provisional\nappointees or categories thereof who have served for a period of\ntwenty-four months or more in a position which is covered by such an\nagreement. No such provisional employee shall be deemed to be\npermanently appointed under such circumstances, nor may such\ndisciplinary procedures be deemed to preclude removal of an employee as\na result of the establishment of and appointments from an appropriate\neligible list or in accordance with any other provision of law. Any such\nagreement may apply upon the effective date of chapter five of the laws\nof two thousand eight, and during the timely submission, approval and\nimplementation of a plan in accordance with paragraphs (b), (c) and (e)\nof this subdivision, and of revised plans in accordance with paragraphs\n(c-1), (c-3), (c-4) and (c-5) of this subdivision, and shall not apply\nto any provisional employee serving in a position for which an\nappropriate eligible list has been established pursuant to a plan\napproved in accordance with this subdivision unless such list is not\nadequate to fill all positions then held on a provisional basis or is\nexhausted immediately following its establishment.\n (h) (i) If the DCAS employers are not in substantial compliance with\nthe time periods permitted by subdivisions one, two, three and four of\nthis section by December thirty-first, two thousand twenty-three, as set\nforth in the report submitted by DCAS pursuant to subparagraph (ii) of\nthis paragraph, then an advisory workgroup for provisional appointments\nin the city of New York ("advisory workgroup") shall be established. The\nadvisory workgroup shall consist of six members, one of whom shall be\nappointed by the governor, one of whom shall be appointed by the speaker\nof the assembly, one of whom shall be appointed by the temporary\npresident of the senate, two of whom shall be appointed by the mayor of\nthe city of New York, including one recommended by the citywide\nbargaining representative, and one of whom shall be appointed by the\ncommissioner of the New York city department of citywide administrative\nservices (DCAS). The advisory workgroup shall be chaired by a member\ndesignated by the mayor. The advisory workgroup shall submit to the\ngovernor, the state legislature and the mayor a single recommended plan\nfor the DCAS employers to substantially comply with the time periods\npermitted by subdivisions one, two, three and four of this section, to\nbe adopted by or pursuant to state legislation. For the purposes of this\nparagraph, "substantial compliance" shall have the same meaning as\nprovided in paragraph (b), as modified by paragraph (c-5) of this\nsubdivision. Such recommended plan may include, but shall not be limited\nto, a schedule for administration of examinations and establishment of\neligible lists, a determination of additional appropriate existing or\nplanned eligible lists that may be used, consolidation of titles through\nappropriate reclassification, and any other lawful and appropriate means\nof implementation. The recommended plan shall to the extent practicable\nbe supported by appropriate documentation and explanation.\n (ii) DCAS shall submit a progress report to the governor, speaker of\nthe assembly, temporary president of the senate and the mayor of the\ncity of New York no later than December thirty-first, two thousand\ntwenty-two. Such report shall contain numbers that are as current as\npracticable and shall include the total number of provisional\nappointments remaining, the number of provisional appointments that have\nbeen reduced, the number of provisional appointments that still need to\nbe reduced in order to achieve substantial compliance as provided by\nparagraph (b) of this subdivision, and a statement of whether DCAS\nbelieves substantial compliance with the timeframes permitted by this\nsection as provided by paragraph (b) of this subdivision can be achieved\nby December thirty-first, two thousand twenty-three.\n * NB Repealed December 31, 2023\n * 6. Costs. For purposes of this subdivision, the term "DCAS\nemployers" shall have the same meaning as that term is defined in\nsubdivision five of this section. The department is hereby authorized to\ncharge the city of New York for the services and costs associated with\napproving and monitoring any plan submitted by the DCAS employers. No\nlater than December first, two thousand eight and each year thereafter,\nthe department shall estimate the amount necessary, for the entirety of\nthat state fiscal year, to reimburse the department's costs related to\nthe review of such plan, and shall submit the estimated costs to the\ndepartment of city administrative services not to exceed six hundred\nthousand dollars. The city of New York shall pay such estimated costs to\nthe department by December fifteenth, two thousand eight and each year\nthereafter. To the extent, in any year, actual costs for the state\nfiscal year differ from those estimated by the department and paid by\nthe city of New York, the variance shall be reflected as an additional\ncharge or a credit within the estimated costs submitted by the\ndepartment in the following year, so long as the total amount payable to\nthe department for any year's cost does not exceed six hundred thousand\ndollars. The city of New York may charge any DCAS employer that is not\nan agency of the city of New York a share of the costs the department\ncharged to the city under this subdivision. The percentage of costs that\nmay be charged to any DCAS employer shall be determined based on that\nemployer's share of the total number of competitive class positions\nfilled by provisional appointments reflected in the most recent\ndepartment of city administrative services plan submitted under\nsubdivision five of this section. In the event the city of New York\nshall not have made such required payments by December fifteenth, two\nthousand eight and each year thereafter, the commissioner shall certify\nthe unpaid amount to the state comptroller, and the comptroller shall,\nto the extent not otherwise prohibited by law, withhold such amount from\nthe next succeeding payment of per capita assistance to be apportioned\nto the city of New York.\n * NB Repealed December 31, 2023\n