September 17, 2021

Judicial review of decisions involving the placement of a position in the classified service in the exempt class or the noncompitive class

The New York State Department of Financial Services [DFS] asked the Civil Service Commission [Commission] to jurisdictionally classify the titles of Director, Financial Services Programs 1 and 2, positions in the noncompetitive class with a "policy-influencing" designation pursuant to §42[2-a] of the Civil Service Law.*

DFS also sought to have certain vacant noncompetitive investigative positions given "title changes" to the titles of Investigator 1 and Assistant Chief Investigator [Investigator Positions] and, further, jurisdictionally reclassified as positions in the exempt class.

The Public Employees Federation, AFL-CIO [PEF] objected to these title and jurisdictional classification changes** but the Commission ultimately approved the changes as requested by DFS. PEF then initiated a CPLR Article 78 proceeding seeking a court review of the Commission's determination contending that its determinations were "arbitrary and capricious and contrary to law." Supreme Court dismissed PEF's application, ruling that the Commission's determinations were rational. PEF appealed the court's decision.

The Appellate Division, noting that to prevail PEF bore the burden of demonstrating that the Commission "erred in its job classification determinations," said that decisions of the Commission are "subject to limited judicial review and will not be disturbed absent a showing that [they were] wholly arbitrary or without a rational basis", citing Cove v Sise, 71 NY2d 910.

Explaining that it is "well-settled [s]tate policy that appointments and promotions within the civil service system must be merit-based and, when 'practicable,' determined by competitive examination," as mandated by Article V §6 of the State Constitution, opined that "[t]he constitutional dictate does not create an absolute bar to civil service appointments and promotions without competitive examinations."

Citing a number of decisions by New York State courts, the Appellate Division noted the Commission may place a title in the noncompetitive class based on its finding that "it is impracticable to determine merit and fitness for the berth by competitive examination." Focusing on the DFS' requests with respect to the director titles, the court opined that the fact that "the director positions have some overlapping responsibilities with other competitively-tested positions does not preclude a finding that competitive examination is impracticable" for the DFS positions in issue.

As to the investigator positions in issue, the Appellate Division observed that the Commission's determination to place the investigator positions in the exempt jurisdictional class also had a rational basis, explaining that a position may be jurisdictionally classified as exempt based on findings as to "the confidential nature of the position, 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."

* Subdivision 2-a provides as follows: "The state or municipal civil service commission by appropriate amendments to its rules shall designate among positions in the non-competitive class in its jurisdiction those positions which are confidential or require the performance of functions influencing policy."

** All positions in the classified service are automatically in the competitive class unless placed in a different jurisdictional classification by the responsible civil service commission or personnel officer or by statute.

Click HERE to access the full text of the Appellate Division's decision.

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