ORDERED, that the Petition by Suffolk County Probation Officers Association seeking to permanently enjoin and restrain Respondents from making any appointments, selections or designations to the Civil Service classification of Supervising Probation Officer as the result of Promotional Examination No.6513, and the list derived therefrom, administered on February 3, 2007, is hereby denied.

Petitioner commenced this proceeding against Respondents by the filing of a Notice of Petition and Petition on or about February 20, 2007 and issue was joined by service of a Verified Answer, together with an Affidavit in Opposition and Memorandum of Law, on or about June 21, 2007. The gravamen of the Petition is that Respondents acted arbitrarily and capriciously by restricting eligibility to sit for the promotional examination for Supervising Probation Officer to those individuals with one year's experience as a Senior Probation Officer. Petitioner thus seeks an Order enjoining and restraining respondents from making any appointments, selections or designations to the Supervising Probation Officer title as a result of the promotional examination administered on February 3, 2007.

The submissions reflect that, the promotional ladder for Probation Officers consists of five levels - Probation Officer Trainee or Probation Officer Trainee (Spanish Speaking); Probation Officer or Probation Officer (Spanish Speaking); Senior Probation Officer; Supervising Probation Officer. The position of Senior Probation Officer was created in 1980 ^[FN1] by the Suffolk County Legislature and approved by the County Executive. Petitioner alleges that since the time of the creation of the position of Senior Probation Officer, it was not designated as a prerequisite to promotion to Supervising Probation Officer. Rather, promotion to Supervising Probation Officer required only three years experience as a Probation Officer. These criteria applied to the promotional [*2]examinations offered in 1998 and 2003. A civil service offering prepared on or about November 26, 2006, provided for a Supervising Probation Officer promotional examination on February 3, 2007. The prerequisite for eligibility to take the examination however, now was restricted to those individuals with one year's experience as a Senior Probation Officer. At the same time, the promotional examination for Senior Probation Officer was offered, with the minimum qualification being two years as a Probation Officer.

Petitioner argues that the restriction on eligibility for Supervising Probation Officer to those in the Senior Probation Officer title for one year results in an injustice. First, Petitioner alleges that the Senior Probation Officer title is a non-supervisory position, many Probation Officers did not take this promotional examination because they were not interested in this type of position, it was not previously required to become a Supervising Probation Officer and now they will have to wait until the next examination is given in approximately four years. Additionally, Petitioner argues that the title Probation Officer is in a direct line of promotion to Supervising Probation Officer and there is no statutory requirement that promotion to Supervising Probation Officer come only from the Senior Probation Officer classification. Petitioner therefore argues that Respondents' determination to limit the pool of eligible candidates for Supervising Probation Officer to Senior Probation Officers lacked the fairness required because it eliminated certain employees and placed them in a situation where they would have to wait multiple years before having the opportunity to obtain a supervisory position.Petitioner further argues that Respondents' failure to provide earlier notice that the requirements for the Supervising Probation Officer examination were changing was wrongful or negligent and thus Respondents should be equitably estopped from selecting from the list.

Respondents submit a Verified Answer, Affidavit and Memorandum of Law in opposition to the Verified Petition. Specifically, Respondents submit an Affidavit in Opposition by Cynthia DiStefano ("DiStefano"), Chief of Classification for the Suffolk County Department of Civil Service. DiStefano states that, in the past, promotion to Supervising Probation Officer was extended to Probation Officers with three years of experience because there was an insufficient number of candidates holding the position directly below, to wit, Senior Probation Officer. She claims that once there was a sufficient pool of candidates holding the Senior Probation Officer position, respondents changed the minimum qualifications for promotion to the position of Supervising Probation Officer so that experience as a Probation Officer alone no longer qualified.

By way of background, DiStefano advised that after the creation of the Senior Probation Officer position in 1980, the title was not really used until 1997 and that permanent appointments to this title were made in August of 1998, after a February 1998 promotional examination. At that time in 1998, there was also a promotional examination for Supervising Probation Officer. However, when the examination for Supervising Probation Officer was announced, no County employee had the permanent competitive status as a Senior Probation Officer, as was required to meet the minimum qualifications for the promotional examination. Therefore, for the 1998 Supervising Probation Officer promotional examination, DiStefano states that Probation Officers with three years of permanent competitive status were deemed eligible for the promotion. [*3]

Again, five years later, there was another promotional examination for Supervising Probation Officer. At that time, there were approximately 38 permanent competitive Senior Probation Officers so the Department added one year of competitive experience as a Senior Probation Officer to the minimum qualifications for the 2003 promotional examination for Supervising Probation Officer. The Department concluded however, that the 38 Senior Probation Officers did not constitute a sufficient pool of candidates for promotion to Supervising Probation Officer and thus for the 2003 promotional examination, permitted Probation Officers with three years of experience to remain eligible to take the examination. Of the fifteen appointments made from the list derived from this 2003 examination, 11 appointees had one year of permanent competitive status as a Senior Probation Officer.

Now, when the Department planned to announce the promotional examination for Supervising Probation Officer in 2007, it found that there were approximately 72 Senior Probation Officers eligible for promotion. Therefore, according to DiStefano, the Department determined that a sufficient pool of candidates existed in the Senior Probation Officer title, thus eliminating the need to offer the examination to Probation Officers with three years of experience. Additionally, DiStefano states that the Department took note of the fact that in the 2003 promotional examination for Supervising Probation Officer, the majority of the individuals promoted had been in the Senior Probation Officer position. Based upon the foregoing factors, respondents argue that the decision to change the minimum qualifications for promotion to Supervising Probation Officer was fair and rational and should not be disturbed.

Civil Service Law §52 states in relevant part:

1.Filling vacancies by promotion. Except as provided in section fifty-one, vacancies in positions in the competitive class shall be filled, as far as is practicable, by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as determined by the state civil service department or municipal commission; except that where the state civil service department or a municipal commission determines that it is impracticable or against the public interest to limit eligibility for promotion to persons holding lower grade positions in direct line of promotion, such department or commission may extend eligibility for promotion to persons holding competitive class positions in lower grades which the department or commission determines to be in related or collateral lines of promotion, or in any comparable positions in any other unit or units of governmental service and may prescribe minimum training and experience qualifications for eligibility for such promotion.

The Court of Appeals has recently reaffirmed the principle that the administrative agency is afforded discretion in determining and adjusting classifications and eligibility requirements and that judicial review is limited to whether there was a rational basis for the agency's conclusion. Hughes v. Doherty, 5 NY3d 100, 800 NYS2d 85, 833 NE2d 228 (2005). "The decisional law ... is that the Department's fixing of the minimum requirements for admission to an examination is not to be interfered with by the courts if any fair argument can be made to sustain its [*4]action." Matter of Wirzberger v. Watson, 305 NY 507, 114 NE2d 15 (1953). This rule is to be applied even if the court may disagree as to the determination of the agency setting the minimum qualification for the promotion. Cahill v. Casey, 180 AD2d 680, 580 NYS2d 63 (2d Dept. 1992). Determinations restricting or expanding eligibility are to be upheld when supported by a rational basis, such as the necessity of creating a larger applicant pool. See, e.g., Rockland County Patrolmen's Benovelent Assoc., v. Commissioner, 265 AD2d 560, 697 NYS2d 168 (2d Dept. 1999); Hewlett v. Evans, 82 AD2d 920, 440 NYS2d 681 (2d Dept. 1981). Moreover, the Department has the right to review and reassess the necessary qualifications. Connery v. White, 164 AD2d 535, 564 NYS2d 530 (3d Dept. 1990).

Here, therefore, the Court's role is narrowly limited to a review of whether respondent's determination to restrict eligibility to take the Supervising Probation Officer promotional examination to those candidates who possessed one year in the Senior Probation Officer title had a rational basis. Based upon the Affidavit of DiStefano and the record before the Court, it is clear that such determination had a rational basis and was not arbitrary and capricious. The record reflects that the eligibility had been expanded for the 1998 and 2003 examination due to the lack of a sufficient applicant pool that would otherwise be eligible for the Supervising Probation Officer promotional examination. It is clear that the Senior Probation Officer title is in direct line between the Probation Officer and Supervising Probation Officer titles and the requirement that a candidate have one year in the Senior Probation Officer position cannot be considered arbitrary or capricious. This fact, coupled with the results of the 2003 promotional examination demonstrating that the majority of candidates selected for promotion were in the Senior Probation Officer position, highlights the fairness of Respondents' determination.

Petitioner's argument that the determination is unfair because Probation Officers who elected not to take the Senior Probation Officer examination because it was not previously a prerequisite to the Supervising Probation Officer position now have to wait several years is unpersuasive.

The Petition is therefore DENIED and the proceeding is dismissed.

The foregoing constitutes the DECISION and ORDER of the Court.

Dated: September 18, 2007 Riverhead, New York

EMILY PINES J. S. C.