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May 30, 2013

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20
Floyd v City of New York, 2013 NY Slip Op 03772, Appellate Division, First Department

Under color of New York City Mayoral Personnel Orders No. 2012/1 and 2012/2, the City issued rules allocating certain “ungraded” civil service titles otherwise subject to prevailing wage bargaining under Labor Law §220 to positions allocated to a salary grade. Such positions, however, upon their being allocated to a salary grade fell within the ambit of the New York City Collective Bargaining Law rather than the provisions of  Labor Law §220. The City’s rules were challenged by the several unions in this action.

The unions argued that the City's actions unilaterally changed ungraded civil service titles which are subject to Labor Law §220 application of prevailing rate wages and supplemental benefits by effectively deleting these classifications and reclassified the ungraded prevailing rate titles into 14 new “Maintenance and Operation Services” titles in violation of Civil Service Law §20.2.*

The City, on the other hand, contended that it had complied with Civil Service Law §20.1 when it allocated titles to a salary grade because it had not change the  jurisdictional classification of the position as §20 “only applies when a title is changed from competitive to noncompetitive or exempt class.” The City also argued that the Department of Citywide Administrative Services has authority to act as a municipal civil service commission pursuant to the New York City Charter and may review salaries and titles, grade and classify them, and remove them from the scope of Labor Law §220 subject to the Mayor's approval and that “the grading of competitive class titles was rational because it is within the City's managerial prerogative, and therefore notice, public hearings and New York State Civil Service Commission approval are not required.”

Supreme Court Judge Manuel J. Mendez annulled the City’s rules that resulted in the several previously “unallocated positions” being allocated to a salary grade. In the words of Judge Mendez, "the changes proposed and implemented by the [the City] resulted in not just grading but reclassification of job titles subject to the provisions of Civil Service Law §20 [36 Misc.3d 653].

Citing Corrigan v Joseph, 304 NY 172, 185 [1952], cert denied 345 US 924, the Appellate Division dismissed the City’s appeal, ruling that the City had promulgated the rules in question without complying with the procedures mandated by Civil Service Law §20 as they had been adopted without notice, without a public hearing, and without approval by the State Civil Service Commission.

* Civil Service Law §20.2, in relevant part, provides as follows: "Procedure for adoption of rules. Such rules, and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof. Except for the city of New York, notice shall be given to any person or agency filing written request, such request to be renewed yearly in December, for notice of  hearings which may affect such person or agency. Such notification shall be made by mail to the last address specified by the person or agency at least thirty days prior to the public hearing  … The rules and any modifications thereof adopted by a city civil service commission or city personnel officer shall be valid and take effect only upon approval of the mayor or a deputy mayor designated in writing by the mayor, such designation to be filed in the offices of the state civil service commission, ... provided, however, that where the mayor, deputy mayor or city manager, or other authority, as the case may be, fails to approve or disapprove a rule or modification thereof within thirty days after the same has been submitted to him, such rule or modification thereof shall be deemed to be approved by him…."
 
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