Originally Posted - December 26, 2006

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QUEENSBURY---Civil Service Law provides that no provisional appointment may continue for more than nine months.

Warren County Sheriff Larry J. Cleveland is at it again.

First he appointed his "best friend" John Shine to the position of major in the Warren County Sheriff's Department under a provisional appointment. His "best friend" is also the "division commander" of investigations, unit supervisor of the Mounted Unit, School Officer Unit and Traffic Safety Unit.

Then he appointed Warrensburg resident Michael Nissen to the position of civil officer even though both the county personnel officer and the state Civil Service examiners said that a transfer of Nissen from his position in the county Social Services Department to the sheriff's department was not possible.

A year later, Michael Nissen, is still in the sheriff's department position, albeit apparently in violation of Civil Service Law and it appears he will continue in that position illegally until at least next fall.

Cleveland's term as sheriff expires next December and it's likely if he decides to seek a new term, he will face stiff competition.

Nissen is a member of the Warrensburg Republican Committee, representing Election District 3 along with Warrensburg town supervisor Kevin Geraghty. Both are members of the Warren County Republican Committee.

Cleveland is a native of Warrensburg.

Geraghty, who has openly proclaimed himself a "friend" of Cleveland, is allegedly trying to disband the Warrensburg town police department in an effort to "give the territory" back to Cleveland. As a result of Geraghty's reduction of hours of the part-time police department and reportedly eliminating Fenton Sabo as police chief, the three part-timers including Sabo quit leaving the town without a police department which seems to have been the Geraghty plan.

According to informed sources, Sabo had been apprised by Geraghty that if he wore the insignia of chief of police, he would be charged with gross insubordination.

Nissen is also the son of Warrensburg town justice Richard Nissen and most interestingly, was reportedly the unauthorized male passenger in the patrol vehicle with then Patrol Officer Larry Cleveland when he drove his patrol car into the side of car in the late spring of 1985. Cleveland had been traveling at 140 mph prior to the crash according to the state police accident reports.

Of course Cleveland has adamantly denied that he exercises any favoritism in the department.

In order to name his best bud to all those positions, he provisionally appointed Shine in October, 2004. Civil Service Law says that provisional appointments can only be for nine months and within those nine months, Shine had to take and pass the Civil Service exam for classification of major.

Shine couldn't pass the September 2005 test but laws don't faze Cleveland, even when the appointment of his "best friend" in a competitive classification is facially unconstitutional.

Just to be sure than Shine had a clean shot at being the only one eligible to take the non-competitive promotional exam for major held in September, Cleveland stated at the annual division meeting in May that the minimum qualifications for taking the exam had changed. Instead of then posted requirement that the exam was "limited to employees permanent for 36 months as patrol lieutenant in the sheriff's department", Cleveland said that they would be a two year period, not the 36 months as had been posted, for time in service at each and every rank for eligibility to the next highest rank, which meant his "best friend" Shine was the only one eligible to take the exam.

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.

Shine took the test again in September, two years after his appointment and according to the county personnel office, "received" a score of 75.

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 is that Shine failed the September 2005 exam and thus no eligible list was established.

It appears that by Cleveland's provisional appointment of Shine as major was 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.

According to information provided by the county personnel office, Nissen's appointment is also unconstitutional and in violation of the state Civil Service Law.

County personnel officer Richard Kelly said that Nissen was appointed to the sheriff's department as a civil officer on Jan. 20, 2006, meaning his provisional appointment would have ended Sept. 20. He has not taken the civil service exam for civil officer.

"We were asked to explore the possibility of a "transfer" based on Nissen's permanent civil service status in the titles of social welfare examiner, senior social welfare examiner, supervising support investigator and coordinator of child support enforcement", Kelly said. "New York State Civil Service had their examiners review the scopes of these titles and concluded that a transfer was not possible, that he would have to compete in an open examination. His appointment was listed as "provisional" and we anticipate the examination in the fall 2007 series".

The Warren County Sheriff's Department is charged with upholding the laws of the state of New York but in the case of John Shine, it appears the department and Cleveland violated the state Constitution as well as the law as Cleveland has done with the appointment of Nissen.

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 as is a civil division officer.

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.

In Nissen's case, no transfer from the social services department to the sheriff's department was allowed by law, his provisional has expired and no civil service exam for the position has been held. Failure to conduct the exam does not extend Nissen's provisional appointment.

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. 12-26-06

© 2006 North Country Gazette