Civilian and military service

A NYPPL analysis

What is the status of the State’s Division of Military and Naval Affairs’ [DMNA] positions staffed by civilian employees? This was the question recently posed by a reader. In the opinion of the editor, such positions are in the competitive class of the classified service unless placed in a different jurisdictional class by law, rule or regulation.

Positions in the public service of the State are in either the civil service or the military service. Positions in the civil service are in either the classified service or the unclassified service; and positions in the classified service are automatically in the competitive class except where the statute provides otherwise or they have been placed in a different jurisdictional class by a rule or regulation adopted by the responsible civil service commission.

Has this issue -- what is the status of DMNA’S civilian employees -- ever been considered by a court? There is one decision in the files of Plain English Legal Publications addressing this question, at least peripherally -- Division of Military and Naval Affairs v PERB, 103 AD2d 876. This action tested a PERB decision holding that the Taylor Law applied to DMNA’s civilian employees.*

First, the Appellate Division, Third Department, rejected DMNA’s long-standing view that personnel employed by DMNA are in the military service and not in the civil service of the State by holding that DMNA’s view on this matter is not dispositive of the issue.

The court observed that DMNA’s personnel consists of a number of different classes of individuals including persons in the organized militia; persons on the state reserve list; persons on the state retired list; ... and all military (including air), naval and civilian personnel who may be serving or employed therein.**

Although DMNA argued that its civilian employees were not covered by the Taylor Law, contending that Section 201(7)(a) of the Civil Service Law specifically excludes persons holding positions by appointment or employment in the organized militia of the state, PERB decided that civilian employees in DMNA were not members of the organized militia and thus the Taylor Law did, in fact, apply to them.

Accordingly, such personnel could organize for the purposes of negotiating the terms and conditions of there employment with their employer. The Appellate Division agreed, sustaining PERB’s decision. The court said that PERB ruling was not irrational and therefore should not be disturbed.

Accordingly, as DMNA’s civilian employees are not in the military service, they must be employed in the civil service of the State.

The court explained:

1. DMNA is a division of the Executive Department, a public employer

2. Public employees are persons holding positions by appointment or employment in the service of a public employer.

3. Civilian employees fall within this definition and must be so considered.

4. Only individuals in the military service of the State, in contrast to all DMNA employees, are excluded from the provisions of the Taylor Law.

As the Taylor Law only applies to individuals holding positions in the public service, DMNA’s civilian employees must be in the public service and as they are not in the military service, such persons must be employed in positions in the civil service of the State.

* The minimum qualifications for employment as a civilian employees of DMNA may require the individual to be a member of the Organized Militia or some other military service or hold a particular military rank.

** The State’s organized militia consists of the New York Army National Guard; the New York Air National Guard; the Inactive National Guard; the New York Naval Militia; the New York Guard ... and such additional forces as may be created by the governor.