PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Appendix 1 of Title 4 NYCRR.
Statutory authority:
Civil Service Law, section 6(1)
Subject:
Jurisdictional Classification.
Purpose:
To classify positions in the exempt class.
Text or summary was published
in the July 3, 2013 issue of the Register, I.D. No. CVS-27-13-00001-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Shirley LaPlante, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us
Assessment of Public Comment
The Civil Service Employee Association, Inc. (CSEA) and the Organization of NYS Management Confidential Employees (OMCE) submitted public comments objecting to the proposed amendment to add 120 positions of Empire State Fellows in the exempt jurisdictional class. Subsequently, the rule was placed on the Commission calendar, where it was approved, on September 10, 2013, for final adoption.
CSEA asserted that the blanket exempt-class designation was not in keeping with the merit and fitness principles of the New York State Constitution and that increasing the number of employees who lacked tenure, resulted in instability in policy-making positions. OMCE expressed general concerns regarding the erosion of the career civil service among the State’s upper and middle management ranks and similarly argued that there was no consideration regarding the practicability or impracticability of examination for such positions; that attributes essential for success, such as tact, diplomacy, and sound judgment can be assessed by proven selection devices; that a strong merit-based career service is the best way to ensure that appointees are insulated against political and other external pressure; and that the State’s career competitive class workforce, excluded by design from participating in the program, is replete with qualified and skilled workers.
Article V, section 6 of the Constitution requires that appointments to the classified service of the State be “made according to merit and fitness, to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive….” However, the Legislature carved out a number of exceptions where competitive examinations are not practicable, including exempt class positions, wherein incumbents typically function in the strictest confidential capacity, performing work that requires personal traits and characteristics that are not measurable by either competitive or non-competitive examination, and where the discretion of appointment afforded by exempt jurisdictional classification is essential in selecting individuals in whom the appointing authority has complete confidence.
Commission determinations are based upon information provided by the appointing authority, as well as comments from the Division of Classification and Compensation and the Division of Staffing Services of the Department of Civil Service. In this instance, the Commission was persuaded by staff’s analysis that according to the requesting agency, incumbents will work primarily with those in the Executive Chamber assigned to key policy and Cabinet-level positions; that they may rotate into agencies working directly with a Commissioner, Executive Deputy Commissioner or other high-level policy-maker, offering them an unparalleled experience collaborating with senior officials and participating in the policy-making process; that they will be exposed to, and work directly on, highly sensitive, confidential matters requiring a significant level of personal and professional discretion; and that exempt classification is warranted, as neither competitive nor non-competitive examination would be practicable to test for such traits.
