TO: Agency Personnel Affirmative Action Officers

FROM: Robert Parrish

SUBJECT: Proposed Change in Rule 4.5

DATE: January 27, 1989

In the decision of the Appellate Division, 1st Department, in the Reis case, a provisional public employee's probationary period was determined to begin when the employee's name appeared on the eligible list for the position, not when the employee was formally appointed by the payroll process. That decision is now on appeal to the Court of Appeals. We expect to participate in the appeal with the filing of an amicus brief stating our interpretation of Law and Rule, and our historical practice of initiating probation upon formal appointment, following successful completion of the competitive examination process.

Several cases on this same issue have been brought since Reis. Pending the outcome of the appeal, the Civil Service Commission has proposed a change in Rule 4.5 to reiterate the longstanding policy regarding the point of inception of probation. This change is being published in the State Register as required for changes to agency regulations. The text is as follows:

Rule 4.5 Probation. (a) It is the intent of the Civil Service Commission that permanent appointments, promotions or transfers shall require, as provided herein, satisfactory completion of a probationary term which shall include a minimum and a maximum period of probation. Such probationary term shall commence on the effective date designated by the appointing authority and approved by the civil service department for the appointment. promotion or transfer on a permanent basis. Such appointments, promotions or transfers shall not become permanent prior to satisfactory completion of at least the minimum period and may require satisfactory completion of the maximum period of probation. If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of [service] probation.

[ ] = material to be deleted; ____ = material to be added

Following the receipt of any comments to the proposed charge, the Commission will finalize the wording of the Rule.

In the interim agencies should be aware that provisionals who are successful on the examination for their position begin their probationary period when the eligible list is established, not when it is later determined that they are reachable for appointment.

[Note: this decision was later reversed. See Advisory Memo 89-05]