N.Y. Civil Service Law § 81: Preferred lists; certification and reinstatement therefrom

§ 81. Preferred lists; certification and reinstatement therefrom. 1.

Establishment of preferred lists; general provisions. The head of any

department, office or institution in which an employee is suspended or

demoted in accordance with the provisions of section eighty of this

title shall, upon such suspension or demotion, furnish the state civil

service department or appropriate municipal commission, as the case may

be, a statement showing his name, title or position, date of

appointment, and the date of and reason for suspension or demotion. It

shall be the duty of such civil service department or commission, as the

case may be, forthwith to place the name of such employee upon a

preferred list, together with others who may have been suspended or

demoted from the same or similar positions in the same jurisdictional

class, and to certify such list, as hereinafter provided, for filling

vacancies in the same jurisdictional class; first, in the same or

similar position; second, in any position in a lower grade in line of

promotion; and third, in any comparable position. Such preferred list

shall be certified for filling a vacancy in any such position before

certification is made from any other list, including a promotion

eligible list, notwithstanding the fact that none of the persons on such

preferred list was suspended from or demoted in the department or

suspension and demotion unit in which such vacancy exists. No other name

shall be certified from any other list for any such position until such

preferred list is exhausted. The eligibility for reinstatement of a

person whose name appears on any such preferred list shall not continue

for a period longer than four years from the date of separation or

demotion. An employee whose name was placed on the preferred list and at

the time of such placement was on active duty with the armed forces of

the United States, as pursuant to title ten, fourteen or thirty-two of

the United States code, shall not be eligible for employment

reinstatement for a period longer than four years after the date of

termination of military duty.

2. Order of certification of names from preferred lists. Except as

hereinafter provided, the names of persons on a preferred list shall be

certified therefrom for reinstatement to a vacancy in an appropriate

position in the order of their original appointments.

(a) Upon the occurrence of a vacancy in an appropriate position in the

service of a civil division, except in a city having a population of one

million or more, the names of persons on the preferred list shall be

certified to fill such vacancy in the following order: (1) persons

suspended from or demoted in the department or agency within which such

vacancy occurs; and (2) persons suspended from or demoted in other

departments and agencies in such civil division.

(b) Upon the occurrence of a vacancy in an appropriate position in the

state service, or in the service of a city having a population of one

million or more, the names of persons on the preferred list shall be

certified to fill such vacancy in the following order: (1) persons

suspended from or demoted in the department in which such vacancy

exists, except that where such vacancy exists in a separate suspension

and demotion unit, the names of persons suspended from or demoted in

such unit, and not those suspended from or demoted in the entire

department, shall be certified first; and (2) all other persons on such

preferred list.

3. Eligibility and order of certification for reinstatement of persons

suspended from or demoted in the service of a county in a city wholly

including within its limits two or more counties. Any person suspended

or demoted from a position in the service of a county in a city wholly

including within its limits two or more counties, where the compensation

of such position is paid directly from the treasury of such city, shall

be eligible for certification and reinstatement from the preferred list

to the same or similar position, or a similar position in a lower grade

in the same occupational field, in the service of any county within such

city. Upon the occurrence of a vacancy in an appropriate position in

the service of any such county, the names of persons on the preferred

list shall be certified to fill such vacancy in the following order:

(a) persons suspended from or demoted in the particular county office in

which such vacancy occurs; (b) persons suspended from or demoted in

other county offices in the same county in which such vacancy occurs;

(c) persons suspended from or demoted in county offices in other

counties within such city.

4. Certification of probationers from preferred list. Notwithstanding

the provisions of subdivisions two and three of this section, no person

suspended or demoted prior to the completion of his probationary term

shall be certified for reinstatement until the exhaustion of the

preferred list of all other eligibles thereon. Upon reinstatement, such

probationer shall be required to complete his probationary term.

5. Effect of failure or refusal to accept reinstatement. The state and

municipal civil service commissions shall adopt rules providing for the

relinquishment of eligibility for reinstatement upon failure or refusal

to accept reinstatement from a preferred list.

6. Salary upon reinstatement. A person reinstated from a preferred

list to his former position or a similar position in the same grade

shall receive at least the same salary such person was receiving at the

time of suspension or demotion.

7. Notwithstanding any other provisions of this chapter, the civil

service department or appropriate municipal commission may disqualify

for reinstatement and remove from a preferred list the name of any

eligible who is physically or mentally disabled for the performance of

the duties of the position for which such list is established, or who

has been guilty of such misconduct as would warrant his dismissal from

the public service, except that a partially physically handicapped

person, who is suspended pursuant to section eighty of this chapter

because of lack of work, but who, within six months of the date of his

suspension, is certified for reinstatement to any job item having the

same physical requirements as the job item from which the person was

suspended shall not be disqualified because of his physical handicap

unless a medical examination discloses that because his handicap has

become greater he would not be able to satisfactorily perform in such

job item. No person shall be disqualified pursuant to this subdivision

unless he is first given a written statement of the reasons therefor and

an opportunity for a hearing at which such reasons shall be established

by appropriate evidence, and at which such person may be represented by

counsel and present evidence. The civil service department or municipal

commission may designate a person to hold such hearing and report

thereon.

8. Notwithstanding any other provisions of this chapter, any person

may voluntarily remove his or her name from a preferred list by

application to the civil service department or appropriate municipal

commission.

9. An employee who is eligible to be placed on a preferred list

pursuant to this section and who elects, as a member of a public

employee retirement system, to retire upon a suspension or demotion,

shall be placed on a preferred list and shall be eligible for

reinstatement from such list.