§44 of the Civil Service Law provides, in pertinent part, that "[t]he competitive class ... shall include all positions now existing or hereafter created ... except such positions as are in the exempt class, the non-competitive class or the labor class."
With respect to jurisdictionally classifying a position* as a position in the exempt class, §41.2 of the Civil Service Law provides that "No office or position shall be deemed to be in the exempt class unless it is specifically named in such class in the rules. 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 New York State Department of Financial Services [DFS] requested that the New York State Civil Service Commission [Commission] place five new Special Assistant positions in the exempt class. The Public Employees Federation [PEF] objected to jurisdictional classification of the positions as DFS had requested. The Commission considered the views of DFS and PEF with respect to jurisdictionally placing the five positions in the exempt class and ultimately adopted a rule placing the five positions in the exempt class.
PEF then initiated a CPLR Article 78 proceeding seeking a court order annulling the Commission's determination. Supreme Court dismissed PEF's petition.
The Appellate Division affirmed the lower court's ruling, explaining "[A]ppointments and promotions within the civil service system must be merit-based and, when practicable, determined by competitive examination". However, continued the court, a position for "which competitive or non-competitive examination may be found to be not practicable shall be designated as exempt."
Noting that a civil service commission's placement of a position in the exempt class is permitted when it determines that the nature of the position is "confidential;" involves the performance of duties which require the exercise of authority or discretion at a high level; or the need for the appointee to have some expertise or personal qualities "which cannot be measured by a competitive examination," the Appellate Division said that its review of the Commission's determination "is limited to whether it was wholly arbitrary or without a rational basis".
Here, said the court, the record indicates that DFS requested exempt classification of the five positions was based, in part, upon the sensitive and confidential nature of the duties of the incumbent of the position and the ability of Special Assistants to influence policy and which appointees "were required to have a confidential relationship with DFS's superintendent and the full trust of the superintendent."
Noting that the Commission considered, among other factors, DFS summary memorandum explaining the basis for its request and the confidential character and the high-level responsibilities and duties of the incumbents of these five positions, the Appellate Division said that it could not conclude that the Commission's determination was arbitrary or without any rational basis.
* Article 1, §2.10 of the Civil Service Law defines the term "jurisdictional classification" as the assignment of positions in the classified service to the competitive, non-competitive, exempt or labor classes;" to be distinguished from "position classification" which is defined in Article 1, §2.11 of the Civil Service Law as "the grouping together, under common and descriptive titles, of positions that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualification requirements..." for such positions.
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