The New York State Civil Service Commission
Although many people make no distinction between the Department of Civil Service (DCS) and the Civil Service Commission (CSC), each maintains its own independent identity and functions.
Jurisdiction of the Commission: The Classified Civil Service
Generally, the CSC and the DCS exercise authority over the classified civil service of the State. Positions in the unclassified civil service are not subject to CSC or Department 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 DCS.
Functions of the Commission
While general authority and responsibility for administration of the New York State Civil Service Law (CSL) is vested in the DCS, the CSC 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 1, "Executive Items," below). Executive actions include defining the scope of the competitive examination program through the jurisdictional classification process.
- Appellate Authority
- The CSC 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 DCS. The CSC also reviews appeals from determinations of the Director of Classification and Compensation.
- Investigative Authority
- The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.
Composition of the Commission
The CSC 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 DCS, and is responsible for carrying out all of the duties and functions of the Department.
Office of Commission Operations
The Office of Commission Operations has been established within the DCS. The Commission Operations staff supports the work of the CSC.
Open Meetings of the Commission
The CSC 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 two Commissioners is required to effect a decision. Certain decisions regarding municipal civil service rules require the assent of all three Commissioners (see Section 4, "Municipal Service," below).
The CSC can "calendar" (reserve) 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, the Commission has issued guidelines governing how the Commission processes appeals. These guidelines are available through the Department of Civil Service's website at http://www.cs.ny.gov/commission/appealguidelines/guidelines.cfm.
Open Meetings Calendar and Calendar Index
The Commission Meeting Calendar lists the issues before the CSC 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:
|2||Approval to Employ Retirees
|2-a||Extensions in Service Over Age Seventy|
|5||Testing Services||6||Merit Awards|
|7||Vacant Exempt Class Positions|
|8||Section 55 b/c|
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.
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 CSC 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 State CSC 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 CSC on the administration of the Civil Service Law and Rules within their jurisdictions. The CSC also reviews merit system administration reviews (audits) conducted by the staff of the Municipal Service Division under the authority of CSL § 26 (2).
Approval to Employ Retirees, Pursuant to § 211 of the New York State Retirement and Social Security Law (RSSL)
CSL § 150 suspends all pension payments to New York State public service retirees, including municipal workers, who return to State or local public employment, for the duration of their new public job. (Elective officeholders are exempt.)
Section 212 of the New York State Retirement and Social Security Law modifies the application of CSL § 150. Under RSSL § 212, a public service retiree, who draws a government pension, can accept another public position, paying below a set dollar limit, without suffering any diminution of pension earnings. Currently, the maximum salary limit is $30,000 (for 2008).
The § 212 earnings limitation ceases to apply beginning the calendar year that the re-employed retiree reaches age 65.
- The Section 211 Waiver
Section 211 of the RSSL authorizes the State CSC to grant waivers (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. This law was recently amended by Chapter 640 of the Laws of 2008 (Chapter 640), effective October 7, 2008, to clarify the requirements that must be met before a public employer may hire an individual who continues to receive a New York public pension. The Commission recently issued guidelines governing the waiver process.
Generally, Chapter 640 has a grandfather clause to ensure that agencies employing retirees under 211 waivers will not face extensive turnover of their experienced employees. To avoid such turnover, the amendments to RSSL section 211 in Chapter 640 provide that they "shall not apply to individuals to whom waivers were granted prior to the effective date of this act." Accordingly, any application of a prospective employer to hire or continue to employ a retiree who was employed under a waiver prior to October 7, 2008, will be evaluated under the RSSL standards in effect prior to Chapter 640, the pre-October 7, 2008 statutory criteria. All other waiver applications of prospective employers are evaluated under the standards in Chapter 640, the post-October 7, 2008 statutory criteria. The specified criteria are as follows:
- Pre-October 7, 2008 Statutory Criteria
Prior to Chapter 640, in order to obtain a 211 waiver the prospective employer of a retiree had to submit an application which contains detailed reasons to demonstrate that:
- the retired person is duly qualified, competent and physically fit to perform the duties of the position in which he or she is to be employed;
- there is need for his or her services;
- there are not readily available for recruitment other qualified persons if he or she is to earn more than $1,000; and
- his or her employment is in the best interest of the government service.
- Post-October 7, 2008 Statutory Criteria
Under the amended law, in order to obtain a 211 waiver the prospective employer must submit an application which contains detailed reasons to demonstrate that:
- the retiree is duly qualified, competent and physically fit to perform the duties of the position in which he or she is to be employed;
- the prospective employer has prepared a detailed recruitment plan;
- the employment is in the best interest of government; and either
- there is an urgent need for his or her services as a result of an unplanned, unpredictable, unexpected vacancy and sufficient time is not available to recruit a qualified individual and that such hiring shall be deemed as non-permanent rather than a final filling of such position; or
- the prospective employer has undertaken extensive recruitment efforts and has determined that there are no available, qualified non-retirees.
Each § 211 waiver may be granted for up to two years.
2a. Extensions in Service Over Age Seventy (Superannuation Retirement)
Prior to 1985, the provisions of RSSL § 70, regarding extensions in service over age seventy, applied to almost all public employee members of the New York State public retirement system. (New York State Teachers have a separate retirement system.) Today, this statute applies only to certain fire and police positions.
Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office. The CSC will consider whether:
- The employee is physically fit to perform the duties of the position;
- The employee is under seventy-eight years old (the upper age limit for § 70 extensions);
- The employees' knowledge and special qualifications make continued employment beneficial to the appointing authority.
- The Section 211 Waiver
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 CSC acts to approve placement outside of the competitive class. Agencies may request the CSC 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's Division of Staffing Services, Division of Classification and Compensation and Division of Diversity Planning and Management. The Commission also requests comments from the public employee organizations. This information assists the CSC in its decision making.
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 45-day (minimum) public comment period between the initial approval and formal adoption of a jurisdictional classification resolution. CSC 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 §75 of the Civil Service Law (discussed below).
The CSC can amend the text of the Rules for the Classified Service, Attendance Rules and the Regulations of the State CSC (Commission's Regulations). The text amendment process follows the same administrative procedures (initial and final approval, 45-day comment period, et cetera...) 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 CSC suspend the Attendance Rules for selected locations and agencies in times of duress (a workplace is rendered unusable, a blizzard keeps workers away from their jobs for several days, et cetera...).
Extension of Leaves of Absence Beyond Two Years
The Civil Service Law 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. CSC approval is required to extend these leaves beyond the original two-year period.
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 CSC must find that the reinstatement is "for good cause shown and where the interests of the government would be served." (Classified Service Rules, § 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.
The Testing Program
Committee on Appeals
- The Establishment of Rating Keys for Written Tests
Two members of the CSC act as Chairpersons of the Committee(s) on Appeals. For each written 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'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 CSC. The CSC must approve final rating keys. Once final rating keys are approved, eligible lists can be established.
- 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.
- The Establishment of Rating Keys for Written Tests
Prior Approval of Examination Materials
The Testing Division may request the CSC 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.
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 DCS. The CSC has final approval.
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.
Section 55 b/c
In accordance with Civil Service Law section 55-b, the Commission may "determine up to twelve 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. Upon vacatur, these positions automatically revert to the competitive class. An additional five hundred such positions may be reserved for veterans with disabilities under section 55-c.
Under Civil Service Law section 6(3), the Commission is empowered to investigate all matters touching upon the enforcement and effect of the Civil Service Law 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 to conduct investigations or hearings on its behalf.
Additional matters may be brought to the Commission's attention for discussion and appropriate action.
The guide is not intended to provide a complete or authoritative reference. Please contact us with any questions.