March 26, 2018

Jurisdictional classification and reclassification of positions in the Classified Service


Jurisdictional classification and reclassification of positions in the Classified Service
Spence v New York State Department of Civil Service, 2017 NY Slip Op 08570, Appellate Division, Third Department

Jurisdictional classification involves the assignment of positions in the classified service to the competitive, non-competitive, exempt or labor classes.* In contrast, position classification is a grouping of positions, under common and descriptive titles, that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualifications for appointment to such positions.

In this Article 78 action, Wayne Spence, as President of the New York State Public Employees Federation, [PEF], challenged the decision of the New York State Civil Service Commission [Commission] placing positions of "Empire Fellow" in the State's Empire Fellow Program in the noncompetitive class.

The Empire Fellow Program was created as part of an initiative to recruit and train professionals for policy making roles in state government. Empire Fellows work for two years under the auspices of the Office of General Services [OGS], which assigns them to perform work under senior officials throughout New York State's Executive branch of government that involves the formulation, preparation and execution of high-level projects.

Initially the Commission placed these positions in the exempt class. Subsequently OGS asked the Commission to jurisdictionally reclassify these positions to "Empire Fellow in the noncompetitive class" of the Classified Service and to reflect this change in it Rules for the Classified Service.

PEF opposed the jurisdictional reclassification of these positions and commenced this CPLR Article 78 proceeding. Supreme Court dismissed the petition and PEF appealed the ruling.

The Appellate Division affirmed the lower court's ruling, explaining Administrative determinations concerning position jurisdictional classifications are subject to only limited judicial review and will not be disturbed in the absence of a showing that the decision is "wholly arbitrary or without any rational basis."

Although, said the court, it is "well settled that appointments and promotions within the civil service system must be merit-based and, when 'practicable,' determined by competitive examination," the Commission may nevertheless place a title in the noncompetitive class where "it is impracticable to determine merit and fitness ... by competitive examination." In addition, opined the Appellate Divisions, impracticability could arise "due to either the confidential nature of the position or because the character of the position renders an examination inadequate to measure the qualifications of the prospective employee."

The Appellate Division noted that the "knowledge, skills and abilities" needed to analyze and develop policy could be assessed by competitive examination and titles involving those skills have been classified as being in the Competitive Class and candidates for appointment to such positions have been tested for such skills. But, said the court, "A competitive examination could not discern ... whether a potential fellow had the 'diplomacy, sound judgment and discretion' needed to both responsibly handle restricted information and maintain the trust of the senior appointed officials with whom he or she would closely work."

Also noted was the fact that "new fellows would need to be selected every two years"** which OGS contended made competitive testing impracticable due to respondent Department of Civil Service's "lack of experience in testing for fellowship-type positions, and the conflict between the two-year [f]ellow appointment cycle and the time and resources needed to develop a new competitive testing regimen."

These factors, said the court, provide a rational basis for the Commission's jurisdictional  classification of the Empire Fellow title as positions in the noncompetitive class and that it would "not interfere with its judgment" despite "a substantial variance of opinion" as to the best jurisdictional classification.

Another aspect of jurisdictional reclassification” of a position is the status of the individual in the newly jurisdictionally reclassified position. For example, should a position in the noncompetitive class jurisdictionally be reclassified to the competitive class, in Fornara v Schroeder, 261 NY 363, the Court of Appeals held that if the then incumbent held tenure in the noncompetitive class position, he or she will be continued in service as a tenured permanent employee in the competitive class position without further examination.

In addition, an employee in the classified service may retain certain statutory rights upon the changing of the jurisdictional classification of his or her position from the classified service to the unclassified service. For example, §355-a.10.a. of the Education Law, in relevant part, provides that “The incumbent of any position in the classified service which is determined to be in the unclassified service shall … retain the rights and privileges of the classified service jurisdictional classification with respect to discipline, dismissal and suspension for as long as such person remains in the redesignated position.”

* Positions in the Classified Service,  Civil Service Law §§41-44, are deemed to be in the Competitive Class unless placed, or approved for placement, in another jurisdiction class by the Civil Service Commission or otherwise so designated by law. §35 of the Civil Service Law addresses position in the Unclassified Service.

** §41.2 of the Civil Service Law, in pertinent part, "Upon the occurrence of a vacancy in any position in the exempt class, the state or municipal civil service commission having jurisdiction shall study and evaluate such position and, within four months after the occurrence of such vacancy, shall determine whether such position, as then constituted, is properly classified in the exempt class. Pending such determination, said position shall not be filled, except on a temporary basis.

The decision is posted on the Internet at:

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