1800 Appointments
1850(E) Retroactive / Backdated
1. BACKGROUND
.110 Responsibilities
.111 The Department of Civil Service is responsible for
maintaining accurate personnel status records for State employees.
Since these records serve as a basis for determining employees'
eligibility to compete in promotion examinations, eligibility for
transfer or reinstatement, and seniority dates for layoff purposes,
it is critical that agencies process changes in personnel status
in an accurate and timely fashion via NYSTEP transactions.
.120 Purpose
.121 In those instances where such changes are not reported
in a timely manner, or where an error preventing the processing
of a change has occurred, agencies may request that an employee's
status and/or appointment date be corrected on a retroactive basis.
Such situations are often referred to as "Backdated Appointments";
however for the purposes of state policy and operations, we shall
now use the term "retroactive appointments" exclusively.
.2 POLICY
.210 Criteria
+.211 Retroactive appointments are intended to correct
past clerical or ministerial errors in processing or recording valid
appointments.
.212 The head of the appropriate Staffing Services
Section has the authority to permit retroactive appointments where
the requested retroactive date does not exceed six months and the
action does not involve the payment of additional monies. Additionally,
Staffing Services Section Heads have the authority to approve retroactively
mandated trainee advances and formalized career ladder advances
in those cases where there is no question as to the entitlement
of the employee. (The six month limitation described above does
not apply to mandated trainee or career ladder advances.)
Certain sensitive or complex cases may be referred to Director of
the Division of Staffing Services for final determination.
.213 Appointments effective retroactive more than
six months or involving payment of additional monies may be authorized
only by the Director of the Staffing Services Division (noting the
exceptions of mandated trainee advances and formalized career ladder
advances as mentioned in .212 above; and also excepting retroactive
appointments of five pay periods or less, as described below in
.214E.)
.214 Retroactive appointments are appropriate when all of the following
criteria are met:
- A clerical or ministerial error needs correction. It is only
when there was an error in processing an appointment on the
part of either the agency or the Civil Service Department that
agencies should request a retroactive appointment.
- ALL constitutional and statutory conditions for permanent
appointment must have been met at the time the "error"
prevented the appointment. The agency making the request must
show that there was an item available to which a permanent or
contingent permanent appointment could have been made on the
effective date and that the individual was eligible for permanent
appointment on the requested effective date. The agency must
demonstrate that there was no budget freeze, reemployment list
or other factor that would have prevented the appointment on
the date of the retroactive appointment.
- The intent of the appointing authority on the proposed effective
date to permanently appoint the employee in question must be
apparent and documented by a denied NYSTEP transaction, an appointment
letter, or some other dated document acceptable to the Department
of Civil Service.
- The agency must describe in writing the error that prevented
permanent appointment and explain the circumstances which resulted
in the error and include any available documentation to substantiate
those circumstances.
- + In cases where the appointment date is less than five payroll
periods retroactive, the State Comptroller's Office does not
require agencies to obtain advance approval or provide documentation
for payment of any additional money. Retroactive appointments
of five payroll periods or less do not require exceptional approval
and may be submitted directly to NYSTEP. Except in cases of
mandatory trainee advances or formalized career ladder advancements
(where there is no question concerning the employee's entitlement)
all requests for retroactive appointments which involve the
payment of additional money beyond the five payroll periods
must first be submitted in writing by the requesting agency
to the Director of Staffing Services for review in accordance
with the criteria set forth in A - D above. Approval by the
Director of Staffing Services will be accepted by the Office
of the State Comptroller as sufficient authorization in these
cases.
Review and Approval Requirements for
Various Retroactive Appointment Transactions
| type
of backdate |
5pp or
less |
5pp -
6 months |
over
6 months |
| No $$ involved |
DCS: NYSTEP
review
OSC: NYSTEP approval |
DCS: Staffing Section Head
approval
OSC: Civil Service Approval |
DCS: Staffing Director
approval
OSC: Civil Service Approval |
| $$ involved |
DCS: Staffing Director
approval
OSC: Civil Service Approval |
DCS: Staffing Director
approval
OSC: Civil Service Approval |
| Mandated trainee/career
ladder advance |
DCS: Staffing Section Head
approval
OSC: Civil Service Approval |
DCS: Staffing Section Head
approval
OSC: Civil Service Approval |
.3 INTERPRETATIONS
310. The following illustrate various situations in
which retroactive appointments would NOT be appropriate, and, if based
on case law, the decision on which the determination was based:
- To avoid a hiring freeze an agency requests the retroactive
appointment/leave of absence of an individual to a date BEFORE
he/she passed the physical/medical test for the position.
In Montero v. Lum, the court determined that such an appointment
is in violation of the constitutional mandate of appointment only
upon proof of merit and fitness.
- An agency appoints an individual temporary pending passing
a required phys/med test. Before the test is conducted, the eligible
list expires. The agency requests a retroactive appointment for
the person, citing good faith in making the appointment, and also
noting the Department of civil service's inability to provide
a timely test.
See Montero v. Lum; also, in Hurley v. Bd. of Ed. the court
stated that no constitutionally permissible appointment may be
made after the expiration of the relevant list.
- An agency seeks the retroactive appointment of an employee,
noting that on the requested effective date the employee was reachable
for appointment, and "it is the agency's policy to promote
employees as they become reachable. Due to a clerical error we
never effected the appointment." The agency does not provide
evidence that the appointment of the employee in question was
ever ordered or intended.
The appointing authority must demonstrate that it had actually
exercised its discretion in appointment by selecting a candidate
for appointment, and making that appointment.
- An agency seeks a retroactive permanent appointment of an employee
who had indicated entitlement for veterans' credits. Processing
the S-203 takes a number of weeks. The agency wishes [to]
transact the permanent appointment back to the date of "original"
appointment.
In Marlow v. Tully the court determined that the administrative
procedure of processing the S-203 to confirm the claim of veterans'
credits must be completed before the permanent appointment may
be made.
.4 PROCEDURES
.410 Requests/Determination
.411 + If an approved request will result in the retroactive
payment of additional monies beyond five payroll periods (retroactive
traineeship and formalized career ladder advances excepted) the
agency must submit a written request to the Director of Staffing
Services indicating how the request meets the above criteria.
.412 + The agency must request approval of all retroactive
appointments beyond five payroll periods in writing from the Civil
Service Department, Division of Staffing Services. The request must
show that the above criteria have been met and the item number of
the position was available. Where approval of the Director of Staffing
Services is required, the request must be submitted to the Director
of the Staffing Services Division.
.413 When a final determination has been made concerning
a request for retroactive appointment, formal notification will
be made by the appropriate Staffing Services Section to the requesting
agency.
.414 If approval has been granted, a NYSTEP transaction
must be processed to effect the retroactive appointment.
.415 + If the request is denied and the appointing
authority wishes to challenge the Director of Staffing Services'
decision, an appeal of the decision may be submitted to the Civil
Service Commission.
TM-51; +Revised; February, 2001
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