Originally Posted - July 29, 2006

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Warren County Sheriff Larry J. Cleveland has adamantly denied that he exercises any favoritism in the Warren County Sheriff's Department.

But let's consider the appointment of John Shine.

In February, the Albany Times-Union published a puff piece on Cleveland, interviewing Shine and Cleveland, and titled it "Striving to Do Things 'Exactly Right".

Cleveland told the newspaper that John was his "best friend" and that his last vacation was in 2003 when he took a trip to Disney World with Shine to see Mickey Mouse and Goofy.

However, it doesn't look like Cleveland has done things 'exactly right' with his promotion of Shine to the position of major in the department, answerable only to his friend Larry as the law enforcement division commander.

Larry's named his best friend "division commander" of investigations, and unit supervisor of the Mounted Unit, School Officer Unit and Traffic Safety Unit. Underlings in patrol services are Patrol Lt. C. Shawn Lamouree and Robert (DWI) Smith.

Thing is, Shine's appointment was only provisional in October, 2004 and so far, now nearly two years later, he hasn't been able to pass the civil service exam for Major. Not only does it appear that Cleveland has violated the Civil Service Law but it appears that the appointment of his best bud in a competitive classification is unconstitutional.

A non-competitive promotional examination for the classification of Major, Local 1503, had been posted by the Warren County Personnel Office on July 14 listing the minimum qualifications as "limited to employees permanent for 36 months as patrol lieutenant in the sheriff's department". The exam was scheduled for Sept. 16 for one vacancy existing in the sheriff's office at a base salary of $74,000. Promotion Exam Info

After The North Country Gazette learned that Cleveland had stated at the annual division meeting in May that there would be a two year period (not the 36 months as posted) for time in service at each and every rank for eligibility to the next highest rank, which seemingly made Shine the only one eligible to take the civil service exam for Major, the newspaper questioned the county personnel office about exam requirements.

Immediately, the personnel office removed the exam notice from the notices posted at their website and stated that "the announcement for major was posted in error. This is a non-competitive promotional exam limited to employees with permanent status as patrol lieutenant for 24 months. John Shine was provisionally appointed on Oct. 4, 2004. An exam for Major was held on Sept. 24, 2005, and no eligible list was established.

There lies the rub.

The provisional appointment was made in October, 2004 and there's been no appointment since and no eligible list.

According to Civil Service Law, a provisional appointment can be made when no appropriate eligible list of at least three people willing to accept the appointment is available to fill a vacancy in a permanent position in the competitive class.

In such case, the appointing officer, Cleveland, nominates a person for the provisional appointment and of course he nominated his best bud, John. If the nominee is certified by the Department of Civil Service as qualified, he/she may be approved as a provisional appointee until an appointment can be made from an appropriate eligible list. In the case of Shine, he was required by law to take and pass the promotional exam for Major within nine months of his temporary appointment.

Civil Service Law provides that no provisional appointment may continue for more than nine months. John Shine's provisional appointment expired on July 4, 2005----two months before he took and flunked the exam for Major. By law, John Shine hasn't been legally entitled to claim the classification of Major for over a year. He automatically reverted back to the position of patrol lieutenant last July, before he even took the test.

Civil Service Law states that successive provisional appointments of the same individual may not be made to the same position after the nine month period. If an examination fails to produce a list adequate to fill positions held on a provisional basis, new provisional appointments may be made to any positions remaining unfilled.

The problem in the Cleveland/Shine case in that Shine failed the exam and thus no eligible list was established.

It appears that by Cleveland's provisional appointment of Shine as Major is unconstitutional, violative of Section 6 of Article V of the State Constitution which requires that appointments be based on merit and fitness. It appears Shine could not legally continue in the classification of Major at that salary level since the nine-month provisional expired last July.

Attempts to clarify the issue this week were stonewalled by Richard Kelly, county personnel officer after the nine month provisional issue was raised. Attempts to obtain a ruling from the state Department of Civil Service were also stonewalled, with Raymond Greene of the Municipal Service Division claiming on Tuesday, July 25, that the public information office would respond to the injury. That office failed to acknowledge the inquiry.

Case law has held that a provisional appointment is a stop-gap or temporary appointment without competitive examination pending establishment by examination of an eligible list and can never be ripen into a permanent appointment. The Court of Appeals has held that all employees of a sheriff's department other than undersheriff, whose duties are related solely to criminal functions and law enforcement, are subject to the regulations of Civil Service Law and are subject to classification in a competitive class. A police Major is in the competitive class of civil service requiring an exam.

The courts have held that a provisional appointee who can't pass the non-competitive promotional exam to a higher rank in the police department is reduced back to the rank of lieutenant when he failed to take and pass a promotional exam within nine months. In Shine's case, he not only failed to take a promotional exam within nine months of his provisional appointment, but when he did take the exam, he flunked. The courts have held that it is the duty of the local office to schedule the qualifying exam within the nine month window and failure to do so does not extend the provisional appointment.

According to established case law, it appears it would be unconstitutional to continue Shine in the position of major without selection from an eligible list established after a competitive exam. This rule of law is fundamental and firmly fixed by the state Constitution, by statute and by decisional law.

Section 6, Article 5 of the State Constitution requires that appointments and promotions in the Civil Service of the state and all of the civil divisions thereof….shall be made according to merit and fitness to be ascertained as far as practicable, by exam, which as far as practicable shall be competitive.

The only way Shine can claim the position of Major in the Warren County Sheriff's Department is under valid appointment. A valid appointment is one made in strict conformance with the Constitutional provisions and Civil Service Law 44 and Rules. All of these require a competitive exam for any position in the competitive class of civil service, something that John Shine hasn't passed and its been two years since the provisional appointment.

It doesn't appear that Cleveland's appointment of his best bud Shine as Major has been done "exactly right". 7-29-06

© 2006 North Country Gazette