Must Make Process Fair
Reshaping City Civil Service

By NEAL TEPEL

In a decision by the New York State Court of Appeals regarding the rights of provisional employees in New York State, the court supported the civil service's "merit and fitness" system. Civil Service Law Section 65 permits provisional appointments only when eligible list are not available for filling a vacancy in a competitive title. Section 65 requires that provisional appointments be terminated within two months of the establishment of an appropriate eligible list. A civil service examination must be given for any title in which a provisional has served at least one month.

Neal Tepel is President of the Civil Service Merit Council.

Can't Be Better Off

In the Matter of the City of Long Beach, the court stated that parties in collective bargaining cannot "agree to provide superior rights to provisional employees holding positions beyond that statutory period." The court made clear that the contractual labor agreement which allowed for Long Beach to retain provisional personnel for more than nine months is a violation of law. Thus provisional employees cannot be covered by collective bargaining agreements and cannot challenge a termination through the arbitration process. In addition, this municipality failed to administer exams in a timely manner.

State law must comply with the State Constitution, and New York's Constitution mandates that appointments to the civil service be based on "merit and fitness." Regardless of labor or contractual agreement, all provisional employees are subject to termination at will, since they do not have legal standing for employment of a civil service position. Therefore, under present law, municipalities should not include continued employment contracts for these workers.

This Long Beach case clearly has an impact on New York City's civil service employment practices. New York City, as do other municipalities, regularly violates civil service laws and does not promulgate lists in a timely manner.

Unions' Role Critical

New York City is now struggling to develop a plan that will ensure compliance with state civil service regulations. Over the past decade, the state has reduced the number of civil service titles from 7,000 to 3,800, resulting in substantially fewer provisional employees. However, title reduction proposals in New York City have always been controversial. Several unions and labor organizations continue to oppose title consolidation initiatives proposed by DCAS, claiming they reduce promotional opportunities or are discriminatory.

Since almost 30,000 unionized provisionals are affected, city employee unions will play a critical role in shaping civil service regulations. Every recommendation should be on the table, with the final version fair to the municipal work force.

Many workers agree with District Council 37 Executive Director Lillian Roberts that the 1-in-3 appointment process in New York City is unfair. "The effect of the rule is that you can't move up if someone doesn't like you," said Ms. Roberts as quoted in The Chief on June 1, 2007. "It creates a form of demoralization, patronage and cronyism."

An Unfair Process

City employees continually complain that although great preparation and cost is required, particularly for promotional examinations, candidates are often arbitrarily and capriciously removed from lists. Applicants are rarely notified of removal nor are they afforded a just hearing.

The fairness of the evaluation and selection process must be addressed as civil service procedures are reviewed and modified. In addition, communication with applicants and unions needs to be radically improved.