N.Y. Civil Service Law § 85: Additional credit allowed veterans in competitive examinations; preference in retention upon abolition of positions

§ 85. Additional credit allowed veterans in competitive examinations;

preference in retention upon abolition of positions. 1. Definitions.

(a) The terms "veteran" and "non-disabled veteran" mean a member of the

armed forces of the United States who was honorably discharged or

released under honorable circumstances from such service including (i)

having a qualifying condition as defined in section one of the veterans'

services law, and receiving a discharge other than bad conduct or

dishonorable from such service, or (ii) being a discharged LGBT veteran,

as defined in section one of the veterans' services law, and receiving a

discharge other than bad conduct or dishonorable from such service, who

is a citizen of the United States or a noncitizen lawfully admitted for

permanent residence in the United States and who is a resident of the

state of New York at the time of application for appointment or

promotion or at the time of retention, as the case may be.

(b) The term "disabled veteran" means a veteran who is certified by

the United States veterans' administration or a military department as

entitled to receive disability payments upon the certification of such

veterans' administration or a military department for a disability

incurred by him or her in the course of his or her service and in

existence at the time of application for appointment or promotion or at

the time of retention, as the case may be. Such disability shall be

deemed to be in existence at the time of application for appointment or

promotion or at the time of retention, as the case may be, if the

certificate of such veterans' administration shall state affirmatively

that such veteran has been examined by a medical officer of such

veterans' administration on a date within one year of either the date of

filing application for competitive examination for original appointment

or promotion or the date of the establishment of the resulting eligible

list or within one year of the time of retention, as the case may be;

that at the time of such examination the disability described in such

certificate was found to exist; and that such disability is rated at ten

per centum or more. Such disability shall also be deemed to be in

existence at such time if the certificate of such veterans'

administration shall state affirmatively that a permanent stabilized

condition of disability exists to an extent of ten per centum or more,

notwithstanding the fact that such veteran has not been examined by a

medical officer of such veterans' administration within one year of

either the time of application for appointment or promotion or the date

of filing application for competitive examination for original

appointment or promotion, or within one year of the time of retention,

as the case may be.

(c) The term "time of application for original appointment or

promotion" shall mean the date of the establishment of an eligible list

resulting from a competitive examination for original appointment or

promotion, as the case may be, which date shall be the date on which the

term of such eligible list commences.

(d) The term "time of retention" shall mean the time of abolition or

elimination of positions.

2. Additional credits in competitive examinations for original

appointment or promotion.

(a) On all eligible lists resulting from competitive examinations, the

names of eligibles shall be entered in the order of their respective

final earned ratings on examination, with the name of the eligible with

the highest final earned rating at the head of such list, provided,

however, that for the purpose of determining final earned ratings,

(1) Disabled veterans shall be entitled to receive ten points

additional in a competitive examination for original appointment and

five points additional credit in a competitive examination for

promotion, and

(2) Non-disabled veterans shall be entitled to receive five points

additional credit in a competitive examination for original appointment

and two and one-half points additional credit in a competitive

examination for promotion.

(b) Such additional credit shall be added to the final earned rating

of such disabled veteran or non-disabled veteran, as the case may be,

after he or she has qualified in the competitive examination and shall

be granted only at the time of establishment of the resulting eligible

list.

3. Application for additional credit; proof of eligibility;

establishment of eligible list. Any candidate, believing himself

entitled to additional credit in a competitive examination as provided

herein, may make application for such additional credit at any time

between the date of his application for examination and the date of the

establishment of the resulting eligible list. Such candidates shall be

allowed a period of not less than two months from the date of the filing

of his application for examination in which to establish by appropriate

documentary proof his eligibility to receive additional credit under

this section. At any time after two months have elapsed since the final

date for filing applications for a competitive examination for original

appointment or promotion, the eligible list resulting from such

examination may be established, notwithstanding the fact that a veteran

or disabled veteran who has applied for additional credit has failed to

establish his eligibility to receive such additional credit. A candidate

who fails to establish, by appropriate documentary proof, his

eligibility to receive additional credit by the time an eligible list is

established shall not thereafter be granted additional credit on such

eligible list.

4. Use of additional credit. (a) Except as herein otherwise provided,

no person who has received a permanent original appointment or a

permanent promotion in the civil service of the state or of any city or

civil division thereof from an eligible list on which he was allowed the

additional credit granted by this section, either as a veteran or

disabled veteran, shall thereafter be entitled to any additional credit

under this section either as a veteran or a disabled veteran.

(b) Where, at the time of establishment of an eligible list, the

position of a veteran or disabled veteran on such list has not been

affected by the addition of credits granted under this section, the

appointment or promotion of such veteran or disabled veteran, as the

case may be, from such eligible list shall not be deemed to have been

made from an eligible list on which he was allowed the additional credit

granted by this section.

(c) If, at the time of appointment from an eligible list, a veteran or

disabled veteran is in the same relative standing among the eligibles

who are willing to accept appointment as if he had not been granted the

additional credits provided by this section, his appointment from among

such eligibles shall not be deemed to have been made from an eligible

list on which he was allowed such additional credits.

(d) Where a veteran or disabled veteran has been originally appointed

or promoted from an eligible list on which he was allowed additional

credit, but such appointment or promotion is thereafter terminated

either at the end of the probationary term or by resignation at or

before the end of the probationary term, he shall not be deemed to have

been appointed or promoted, as the case may be, from an eligible list on

which he was allowed additional credit, and such appointment or

promotion shall not affect his eligibility for additional credit in

other examinations.

5. Withdrawal of application; election to relinquish additional

credit. An application for additional credit in a competitive

examination under this section may be withdrawn by the applicant at any

time prior to the establishment of the resulting eligible list. At any

time during the term of existence of an eligible list resulting from a

competitive examination in which a veteran or disabled veteran has

received the additional credit granted by this section, such veteran or

disabled veteran may elect, prior to permanent original appointment or

permanent promotion, to relinquish the additional credit theretofore

granted to him and accept the lower position on such eligible list to

which he would otherwise have been entitled; provided, however, that

such election shall thereafter be irrevocable. Such election shall be in

writing and signed by the veteran or disabled veteran, and transmitted

to the state civil service department or the appropriate municipal civil

service commission.

6. Roster. The state civil service department and each municipal

commission shall establish and maintain in its office a roster of all

veterans and disabled veterans appointed or promoted as a result of

additional credits granted by this section to positions under its

jurisdiction. The appointment or promotion of a veteran or disabled

veteran as a result of additional credits shall be void if such veteran

or disabled veteran, prior to such appointment or promotion, had been

appointed or promoted as a result of additional credits granted by this

section.

7. Preference in retention upon the abolition of positions. In the

event of the abolition or elimination of any position in the civil

service, any suspension, demotion or displacement shall be made in the

inverse order of the date of original appointment in the service subject

to the following conditions: (1) blind employees shall be granted

absolute preference in retention; (2) the date of such original

appointment for disabled veterans shall be deemed to be sixty months

earlier than the actual date, determined in accordance with section

thirty of the general construction law; (3) the date of such original

appointment for non-disabled veterans shall be deemed to be thirty

months earlier than the actual date, determined in accordance with

section thirty of the general construction law; (4) no permanent

competitive class employee subject to the jurisdiction of the civil

service commission of the city of New York who receives an injury in the

line of duty, as defined in this paragraph, which requires immediate

hospitalization, and which is not compensable through workers'

compensation may be suspended, demoted or displaced pursuant to section

eighty of this chapter within three months of the date of their

confinement, provided that medical authorities approved by such

commission shall certify that the employee is not able to perform the

duties of their position; provided further, that such three-month period

may be extended by such commission for additional periods not to exceed

one year each upon the certification of medical authorities selected by

such commission that the employee is, as a result of their injury, still

not able to perform the duties of their position. An injury in the line

of duty, as used herein, shall be construed to mean an injury which is

incurred as a direct result of the lawful performance of the duties of

the position. In determining whether an injury was received in the line

of duty, such commission shall require the head of the agency by which

the employee is employed to certify that the injury was received as a

direct result of the lawful performance of the employee's duties; and

(5) the spouse of a veteran with one hundred percent service connected

disability shall be deemed to be sixty months earlier than the actual

date, determined in accordance with section thirty of the general

construction law, provided, the spouse is domiciled with the

veteran-spouse and is the head of the household. This section shall not

be construed as conferring any additional benefit upon such employee

other than a preference in retention. Such employee shall be subject to

transfer upon the abolition of their function within their agency or

department.

7-a. For the purpose of subdivision seven of this section, the terms

"date of original appointment" and "date of original appointment in the

service" shall mean, for persons subject to subdivisions one-a and one-c

of section eighty of this chapter, the date of original appointment on a

permanent basis in the grade or title in the service of the governmental

jurisdiction in which such abolition or reduction occurs.

8. Penalty for denial of preference in retention. A refusal to allow

the preference in retention provided for in this section to any veteran

or disabled veteran, or a reduction of his compensation intended to

bring about his resignation shall be deemed a misdemeanor, and any such

veteran or disabled veteran shall have a right of action therefor in any

court of competent jurisdiction for damages and for righting the wrong.