                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   522628
________________________________

In the Matter of MICHAL
   STALEY et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   October 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                             __________


      Lippes Mathias Wexler Friedman LLP, Albany (William F.
Sheehan of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan of counsel), for respondents.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Platkin, J.),
entered May 27, 2015 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondents denying
petitioner Michal Staley a promotion to the position of
correction sergeant.

      In 1997, petitioner Michal Staley began his employment with
respondent Department of Corrections and Community Supervision
(hereinafter DOCCS) as a correction officer and, in 2006, was
promoted to the position of correction sergeant. In January
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2013, while Staley was assigned to the Coxsackie Correctional
Facility, DOCCS issued Staley a notice of discipline charging him
with making inappropriate sexual advances toward a female
subordinate in violation of certain provisions of DOCCS's
employee manual, as well as DOCCS Directive No. 2605, entitled
"Sexual Harassment in the Work Place," and proposed a penalty of
dismissal from service and loss of any accrued annual leave. In
accordance with the governing collective bargaining agreement,
petitioner New York State Correctional Officers and Police
Benevolent Association, Inc. (hereinafter NYSCOPBA) filed a
grievance on behalf of Staley challenging the notice of
discipline. DOCCS suspended Staley without pay pending the
resolution of the disciplinary grievance.

      Before the matter proceeded to arbitration, the parties
reached a settlement agreement in full satisfaction of the notice
of discipline. Under the terms of the agreement, Staley, among
other things, accepted a demotion to the position of correction
officer upon his return to work on February 27, 2012 and agreed
to serve a 12-month disciplinary evaluation period. The
agreement further provided, upon NYSCOPBA's and Staley's
insistence, that "[t]he acceptance of demotion to [c]orrection
[o]fficer in no way prohibits . . . Staley to take future
promotional examinations."

      In October 2013, Staley took the promotional examination
for correction sergeant and received a score of 95, placing him
forty ninth out of 3,731 candidates on the eligible list. In
August 2014, DOCCS promoted a group of candidates – not including
Staley – to the correction sergeant position, most of which
ranked lower than Staley on the eligible list. Shortly
thereafter, DOCCS made another round of promotional appointments
to the position of correction sergeant, again bypassing Staley.
NYSCOPBA subsequently inquired as to why Staley had been passed
over for a promotion, and, according to petitioners, the
Personnel Director of DOCCS indicated that Staley would never be
promoted and that he would be seeking Staley's removal from the
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eligible list.1 Petitioners subsequently commenced this CPLR
article 78 proceeding alleging that respondents' failure and
refusal to promote Staley to the position of correction sergeant
violated the settlement agreement and was also arbitrary and
capricious. Following joinder of issue, Supreme Court dismissed
the petition, concluding that the settlement agreement did not
include an express or implied promise to appoint Staley to the
position of correction sergeant if he became reachable on the
eligible list and that DOCCS's determination to bypass Staley in
an exercise of its discretionary appointive authority was not
arbitrary or capricious or affected by an error of law.
Petitioners appeal, and we affirm.

      Petitioners argue that a fair interpretation of the
settlement agreement includes DOCCS's implied promise to waive
its statutory discretion under the "one-of-three" rule embodied
in Civil Service Law § 61 (1) and promote Staley to the position
of correction sergeant if he became reachable on a future
eligible list. Civil Service Law § 61 (1) provides that
"[a]ppointment or promotion from an eligible list to a position
in the competitive class shall be made by the selection of one of
the three persons certified by the appropriate civil service
commission as standing highest on such eligible list who are
willing to accept such appointment or promotion." In recognition
that "examination success cannot reveal any possible defects of
personality, character or disposition which may impair the
performance of one's duties in a civil service position," the
"one-of-three" rule affords an appointing authority with the
discretion to individually consider each candidate and decline to
promote the highest scoring candidate on an eligible list, so
long as it appoints one of the three top scoring candidates
(Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo
Bd. of Educ.], 90 NY2d 364, 375 [1997]; see Matter of Gomez v
Hernandez, 50 AD3d 404, 404 [2008]).




    1
        The Department of Civil Service ultimately denied the
request of the Personnel Director of DOCCS to remove Staley from
the eligible list.
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      While an appointing authority is generally not prohibited
from voluntarily surrendering the discretion afforded to it by
Civil Service Law § 61 (1) (see Matter of Professional, Clerical,
Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d at 376; Matter
of Lucas [City of Buffalo], 93 AD3d 1160, 1163 [2012]), the
settlement agreement, which states that Staley is "in no way
prohibit[ed from] tak[ing] future promotional examinations," does
not expressly surrender such discretion. In assessing whether
DOCCS impliedly surrendered its statutory discretion, we are
mindful that, "in implying a promise[,] a court should act
prudently and that 'a promise can be implied only where we may
rightfully assume that it would have been made if attention had
been drawn to it'" (Long Is. R.R. Co. v Northville Indus. Corp.,
41 NY2d 455, 462 [1977], quoting Genet v Delaware & Hudson Canal
Co., 136 NY 593, 609 [1893]; see Maas v Cornell Univ., 94 NY2d
87, 94 [1999]).

      In support of their position that DOCCS impliedly promised
to waive its discretion under Civil Service Law § 61 (1) and
promote Staley once he became reachable on a promotional list,
petitioners submitted the affidavit of the Mid-Hudson Region Vice
President of NYSCOPBA, who stated that it was DOCCS's "practice
. . . to make appointments from the eligible list in strict
numerical order, without exercising the one-[of]-three rule to
pass over certain individuals on the list" and that, although
Staley's actual appointment to correction sergeant if he was
reachable on a promotional list was not discussed during the
negotiation of the settlement agreement, he did not believe that
such a discussion was necessary given DOCCS's longstanding
appointment practices. He also stated that it was both his and
Staley's understanding that Staley would not be passed over for a
promotion under the "one-of-three" rule. Similarly, another
NYSCOPBA official stated that it was DOCCS's practice to make
appointments "straight down the list in numerical order" and that
it was "extremely rare" for DOCCS to deviate from that practice.

      In addition, both NYSCOPBA officials indicated that Staley
had a right to take promotional examinations even without the
inclusion of language to that effect in the agreement and that
the disputed provision in the agreement only had meaning if it
was interpreted as a promise to appoint Staley to the position of
                              -5-                522628

correction sergeant once he was reachable on the eligible list.
Petitioners further submitted email correspondence in which an
employee in DOCCS's Bureau of Labor Relations stated that DOCCS
"ha[d] no intention of stopping [Staley] from taking future
promotion exams" and therefore would acquiesce to Staley's demand
that the agreement include language stating that he "not be
prevented from taking future promotional exams for [s]ergeant."
As properly concluded by Supreme Court, the foregoing
submissions, considered along with affidavits of DOCCS employees
stating that DOCCS did not waive or limit its discretionary
appointive authority, do not demonstrate that DOCCS manifested an
intention to surrender its appointment discretion under Civil
Service Law § 61 (1) with respect to Staley and appoint him once
he became reachable on the promotional list (see Long Is. R.R.
Co. v Northville Indus. Corp., 41 NY2d at 461-462; Gertler v
Goodgold, 107 AD2d 481, 485 [1985], affd 66 NY2d 946 [1985]).
Accordingly, DOCCS's refusal to promote Staley to the position of
correction sergeant did not violate the settlement agreement.

      Turning to DOCCS's determination not to promote Staley,
DOCCS's Director of Personnel asserted that DOCCS departed from
its usual practice of making appointments "in score and seniority
order off the promotion-eligibility list," which departure does
not in and of itself render DOCCS's determination arbitrary and
capricious (see Matter of Andriola v Ortiz, 82 NY2d 320, 324
[1993], cert denied 511 US 1031 [1994]), given Staley's recent
substantiated disciplinary charge of sexual harassment and the
agency's policy of considering such misconduct in making
promotional appointments so as to advance the goals of the Prison
Rape Elimination Act (see 42 USC § 15601 et seq.). Considering
this explanation, DOCCS's determination to exercise its
discretion under Civil Service Law § 61 (1) and bypass Staley
when it made its promotional appointments was not an abuse of
discretion, arbitrary and capricious or affected by an error of
law (see CPLR 7803 [3]; Matter of Gomez v Hernandez, 50 AD3d at
404-405).

      To the extent that any of petitioners' arguments have not
been expressly discussed herein, they have been examined and
found to be without merit.
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McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.



ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
