Department of Civil Service

Observers' Guide to the Civil Service Commission

Although many people make no distinction between the Department of Civil Service and the State Civil Service Commission (the Commission), each maintains its own independent identity and functions.

Jurisdiction of the Commission: Classified Civil Service

Generally, the Commission and the Department of Civil Service exercise authority over the classified civil service of the State. Positions in the unclassified civil service are not subject to Commission or Department of Civil Service jurisdiction. The unclassified civil service includes elective offices, employees and officers of the legislature, members and employees of boards of elections, department heads, gubernatorial appointees and teachers and supervisory personnel in the public schools and the State University system. The State Legislature has also placed merit system authority over the Judiciary and State Police beyond the authority of the Commission or Department of Civil Service.

Functions of the Commission

While general authority and responsibility for administration of the New York State Civil Service Law (CSL) is vested in the Department of Civil Service, the Commission retains broad merit system oversight responsibilities for both State and local government. The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority

The Commission promulgates rules and regulations for the classified service. This includes the Rules for the Classified Service and the Commission's Regulations. The "quasi-legislative" function embraces many of the Commission's executive decisions (see Section 3, "Executive Items," below). Executive actions include defining the scope of the competitive examination program through the jurisdictional classification process.

Appellate Authority

The Commission can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission, acting as the head of the Department of Civil Service. The Commission also reviews appeals from determinations of the Director of Classification and Compensation.

Investigative Authority

The Commission can investigate any matter concerning the enforcement and effect of the CSL or rules.

Composition of the Commission

The Commission is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. Commissioners serve overlapping six-year terms; one Commissioner's term expires every two years. Commissioners can be reappointed.

When a Commission vacancy occurs, the Governor may appoint a new Commissioner, upon Senate approval. The new appointee will serve the remainder of the previous Commissioner's unexpired term.

President of the Commission

The Governor designates one of the three Commissioners as the President of the Commission. The President serves in office at the pleasure of the Governor. The President of the Commission is also the head of the Department of Civil Service, and is responsible for carrying out all of the duties and functions of the agency.

Office of Commission Operations

The Office of Commission Operations has been established within the Department of Civil Service. The Commission Operations staff supports the work of the Commission.

Open Meetings of the Commission

The Commission conducts its business during its annual schedule of eleven monthly meetings. The Commission does not meet in August. Those meetings that are open to the public are webcast in accordance with Executive Order 3 and are held in Albany. Official minutes are kept for each open meeting and are available for public inspection.

Two Commissioners constitute a meeting quorum, and approval of at least two Commissioners is required to affect a decision. Certain decisions regarding municipal civil service rules require the assent of all three Commissioners (see Section 1, "Municipal Service," below).

The Commission can "calendar" items for further consideration at future meetings. This process allows the Commissioners additional time to consider an issue and review supporting materials before rendering a decision.

Appeals to the Commission

While Commission appeals are not subject to the Open Meetings Law and the requirements of Executive Order 3, Guidelines have been issued governing how the Commission processes appeals.

Open Meetings Calendar and Calendar Index

The Commission Meeting Calendar lists the issues before the Commission at each monthly open meeting. The Meeting Calendar Index describes the general order in which items will be considered during a meeting. A sample Commission Meeting Calendar Index is reproduced below:

Issues Addressed at Open Meetings of the Civil Service Commission

Meetings vary in the number and type of items presented. This guide follows the agenda of a Commission meeting, as described by the Calendar Index. The Commission can alter the order in which items are considered.

1. Municipal Service

The Commission's merit system oversight responsibility extends to the review and approval of rules adopted by local civil service commissions and personnel officers. The Commission examines proposed changes to the text of municipal civil service rules and proposed changes to the rules appendices which place positions outside of the competitive jurisdictional class.

The Commission may rescind or amend local rules and regulations upon the unanimous consent of the three Commissioners.

State Civil Service Law requires municipal civil service commissions or personnel officers to submit annual reports to the Commission on the administration of the CSL and rules within their jurisdictions. The Commission also reviews merit system administration reviews (audits) conducted by the staff of the Municipal Service Division under the authority of CSL Section 26 (2).

2. Approval to Employ Retirees, Pursuant to Section 211 of the New York State Retirement and Social Security Law (RSSL)

Section 211 of the Retirement and Social Security Law (RSSL) authorizes the Commission to grant Section 211 waivers, under certain circumstances, to allow public service retirees to accept government employment and earn compensation in excess of the statutory cap in RSSL Section 212, without the suspension of pension benefits earned through prior service. Additional Information is available here.

1. Extensions in Service Over Age Seventy (Superannuation Retirement)

Prior to 1985, the provisions of RSSL Section 70, regarding extensions in service over age seventy, applied to almost all public employee members of the New York State public retirement system. Today, this statute applies only to certain fire and police positions. Note that New York State teachers have a separate retirement system.

Employees who remain subject to RSSL Section 70 must obtain Commission approval to continue in office. The Commission will consider whether:

1. The employee is physically fit to perform the duties of the position;
2. The employee is under seventy-eight years old (the upper age limit for Section 70 extensions); and
3. The employee's knowledge and special qualifications make continued employment beneficial to the appointing authority.


3. Executive Items


• Jurisdictional Classification

Article V, Section 6 of the New York State Constitution states, in part:

Appointments and promotions in the civil service of the State and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive.

By law, classified service positions are in the competitive jurisdictional class, unless the Commission acts to approve placement outside of the competitive class. Agencies may request the Commission to place existing jobs, or create new job titles, within the exempt, non-competitive or labor classes. Positions in these three jurisdictional classes can be filled outside of the normal competitive examination process.

Agencies must petition the Commission to have positions removed from the competitive jurisdictional class. The agencies are required to provide descriptions of the duties for each job and state their justifications for removing the positions from the competitive class. The Commission obtains supporting materials and analyses from the Department of Civil Service's Division of Staffing Services and Division of Classification and Compensation.

The jurisdictional classification function moves forward according to a methodical process. Agency requests are reviewed for initial approval. In accordance with the State Administrative Procedure Act, there is a 60-day (minimum) public comment period between the initial approval and formal adoption of a jurisdictional classification resolution. Commission resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State. Positions placed within the labor, exempt or non-competitive classes are recorded in the Appendices to the Rules for the Classified Service. For titles listed in the exempt jurisdictional class, only one position is authorized unless a different number is specifically prescribed in the Rules Appendices.

The Commission may, by appropriate amendment to the Rules, designate certain non-competitive class positions as confidential or policy-influencing. These positions are denoted in Appendix 2 with the Greek letter phi. Incumbents in phi-designated non-competitive class positions do not obtain tenure under Section 75 of the CSL (discussed below).

• Text Amendments

The Commission can amend the text of the Rules for the Classified Service, Attendance Rules and the Regulations of the State Commission (Commission's Regulations). The text amendment process follows the same administrative procedures (initial and final approval, 60-day comment period, etc.) as jurisdictional classification decisions.

• Other Executive Actions

Attendance rules for the classified service may be modified in response to requests from appointing authorities or through collective bargaining. Appointing authorities may request that the Commission suspend the Attendance Rules for selected locations and agencies in times of duress (i.e. a workplace is rendered unusable, a blizzard keeps workers away from their jobs for several days, etc.)

4. Staffing Services


• Extension of Leaves of Absence Beyond Two Years

The CSL allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. Employees on leave may return to their tenured State positions during the period of the leave. Appointing authorities can authorize leaves for up to two years. Commission approval is required to extend these leaves beyond the original two-year period.

• Reinstatements

Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Alternatively, reinstatement can occur to any vacant position for which the employee was eligible to transfer when the resignation occurred.

Beyond one year from the resignation date, reinstatement requires Commission approval. The Commission must find that the reinstatement is "for good cause shown and where the interests of the government would be served." (Classified Service Rules, Section 5.4). The Commission certifies the former employee for permanent appointment. Reinstatements following resignation are not in order where a preferred eligible list or a mandatory re-employment list exists.

5. The Testing Program


• Committee on Appeals


1. The Establishment of Rating Keys for Multiple-Choice Tests
   Two members of the Commission act as Chairpersons of the Committee(s) on Appeals. For each multiple-choice examination, the Division of Testing Services prepares a proposed list of correct answers. A Committee on Appeals reviews candidates' objections to these "tentative" answer keys. Professional staff from the Department of Civil Service's Testing Division analyze candidate objections and forward their recommendations to the Committee on Appeals. The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. After review, the Committee submits rating keys to the full Commission. The Commission must approve final rating keys. Once final rating keys are approved, eligible lists can be established.


2. Appeals of Examination Results
   Committees on Appeals can consider appeals on any issue regarding the scoring of all types of examinations, including oral tests, ratings of education and experience and performance assessments. Test results shall stand unless a Committee finds "manifest error" in the examination process that materially impacts the eligibility or relative standing of candidates.


• Prior Approval of Examination Materials

The Testing Division may request the Commission to pre-approve examination materials and rating keys before tests are administered. Commission prior approval is utilized for short-answer written test and test sections where there is a high level of confidence in the reliability of the exam materials. Answer keys that receive Commission prior approval are thereby exempted from post-examination candidate review. Prior approval accelerates examination scoring, which speeds the creation of eligible lists.

6. Merit Awards

   The New York State Employee Suggestion Program is the oldest, continuously operated, non-federal employee suggestion program in America. Any State worker or retiree is eligible to submit ideas through the Employee Suggestion Program. The Program encourages suggestions that will improve State agency program operations, reduce State expenditures and improve productivity. Ideas are reviewed by the agency responsible for implementation. Suggestions recommended for an award are forwarded to the Department of Civil Service. The Commission has final approval.

7. Vacant Exempt Class Positions

   In accordance with Civil Service Law section 41(2), when an exempt class position becomes vacant, the Commission studies and evaluates the position to determine if it should remain within the exempt class. This evaluation must be completed within four months. Until the Commission decides that the position should properly continue within the exempt class, the job can be filled only on a temporary basis.

8. Section 55 b/c

   In accordance with CSL Section 55-b, the Commission may "determine up to seventeen hundred positions with duties such as can be performed by persons with a physical or mental disability who are found otherwise qualified to perform satisfactorily the duties of any such position." Upon such determination, these positions are classified in the non-competitive class. Once these positions are vacated, they automatically revert to the competitive class. An additional five hundred such positions may be reserved for veterans with disabilities under Section 55-c.

9. Investigations

   Under CSL Section 6(3), the Commission is empowered to investigate all matters touching upon the enforcement and effect of the CSL and rules and the action of any person with respect to the administration of such law and rules. The Commission has designated appropriate staff within the Department of Civil Service to conduct investigations or hearings on its behalf.

10. New Business

    Additional matters may be brought to the Commission's attention for discussion and appropriate action.

Note

The guide is not intended to provide a complete or authoritative reference. Please email commops@cs.ny.gov or call (518) 473-6598 with any questions.