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How do provisional appointments work?

Generally three types of appointments are authorized by state Civil Service Law:

  1. Permanent;
  2. Provisional; and
  3. Temporary.

In this issue of The Communicator, we focus on the Provisional Appointment, and common questions associated with this type of appointment.

When can a provisional appointment be made?

A provisional appointment can only be made when there is no valid eligible list in existence for the position, or there are fewer than three persons willing to accept appointment on the Eligible List (CSL Section 65).

How long must an employee serve before their provisional appointment becomes permanent?

A provisional appointment will never ripen into permanent appointment.

It is a mistaken notion that if a provisional appointee serves long enough in a position they will acquire permanency. The provisional appointee may only acquire tenure through the examination procedure, and must be reachable on the resulting eligible list.

The courts have continuously maintained over the years that a provisional appointment is based upon privilege, not rights, and that such an appointment can never ripen into a permanent appointment.  In certain circumstances other legal appointment mechanisms may be utilized by the appointing officer.

The law states that a provisional appointee shall not serve for more than nine months in the position. How can that be true if my colleague has served three years as a provisional appointee?

The provisional appointment is intended to be a temporary measure to fill a position only until the next Eligible List is established. NYS Civil Service Law Section 65 addresses time limitations, and states that a provisional appointee shall not serve more than nine months, and that after a month of service, or “as soon as practicable thereafter,” a civil service examination should be conducted “in order to prevent the provisional appointment from continuing in excess of nine months.”

The state Department of Civil Service (DCS) expends the same amount of resources on an examination that affects one position, as it would for an examination that would affect 40. This is true for written examinations and training & experience (T&E) examinations/questionnaires. T&Es are examinations and, as such, must be cleared, designed and scheduled through DCS as part of yearly examination planning activities.

Since resource availability, in part, dictates whether an exam is conducted, situations occur where provisional appointees can serve for years, without violating Civil Service Law.

If a provisional employee sits for a scheduled examination, are they are more likely to be chosen for appointment, given their service as a provisional in that title?

No. A provisional appointee would have to be reachable on the resulting eligible list, and would have no advantages over other reachable candidates in terms of appointment.

If a provisional employee is reachable for appointment, must they be appointed?

No. Even if a provisional is the only person on the list, the appointing officer has several options. They may decide to:

  1. leave the position vacant; or
  2. select a new person as a new provisional.

As always, if you have any questions about provisional appointments, please contact your PEF field representative, or PEF’s Civil Service Enforcement/Research department.

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