Opinion
July 12, 1996
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Denman, P.J., Lawton, Wesley, Doerr and Balio, JJ.
Order reversed on the law without costs, petition denied, cross motion granted and award vacated. Memorandum: Supreme Court erred in denying respondent's cross motion to vacate the arbitration award. The arbitrator sustained petitioner's grievance and determined that respondent violated the collective bargaining agreement by failing to appoint the highest scoring unit member on the promotional list to the position of senior typist. In sustaining the grievance, the arbitrator found that, although not specified in the agreement, the parties' past practice was to promote the highest scoring unit member on the eligible list.
The one-in-three rule contained in Civil Service Law § 61 is intended to insure that only qualified personnel are appointed, while still granting the appointing authority some discretion in choosing among qualified candidates ( see, Matter of Cassidy v Municipal Civ. Serv. Commn., 37 N.Y.2d 526; Matter of Dramis v Nassau County Community Coll., 173 A.D.2d 705; People ex rel. Qua v. Gaffney, 142 App. Div. 122, affd 201 N.Y. 535). That statute does not prohibit an appointing authority from agreeing to the method it will use in selecting among qualified candidates ( see generally, Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 N.Y.2d 746). An agreement to limit the discretion granted by statute to an appointing authority, however, must be expressed and not implied or imposed by reason of past practice ( see, Andriola v. Ortiz, 82 N.Y.2d 320, 324, cert denied sub nom. Andriola v. Antinoro, 511 U.S. 1031). The arbitration award must therefore be vacated.
All concur except Denman, P.J., and Balio, J., who concur in result ( see, Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 227 A.D.2d 940).