Civil service was a great 19th century reform to deal with the
problem of patronage in public employment. However, the expense of
classifying jobs and administering examinations has given way to
other budget priorities in our age. Without examinations, the
agencies fill up with provisional employees, who have few rights
under civil service law. Public sector labor unions fulfill some of
the functions of civil service, including disciplinary hearings
based on "just cause" instead of "at will."
In public safety positions (police, fire and corrections) the
civil service system is alive and well. Examinations are given on
regular annual schedules, and the employers use civil service lists
exclusively. There are strong unions representing these employees,
and long traditions of using civil service for hiring, promotion,
discipline and layoffs.
Lawyers representing employees and applicants have to know about
appeals to the state Civil Service Commission. The most common
reason for a private lawyer to represent an applicant is when
someone takes an examination, scores highly on the certified list,
and suffers having a lower ranked rival appointed instead. That is
called a bypass, and can be appealed to the commission within 30
days. Legal issues that can arise are: the legality of the
administrative 30 day limit in face of the statutory grant without
any such limit; if the two candidates are tied in their score (is
that a bypass?); and what happens if the state human relations
administrator foregoes the statutory duty to review the proposed
bypass reasons before the appointment. Factual issues include
whether the reasons for bypass are true, equally applied,
pretextual or illegal. Civil service ranking involves preferences
for veterans, minorities, residents, and kinship, and these are
applied before the test score is factored in.
The commission holds hearings, preceded by a conference where the
commissioner will question your client directly to probe
possibilities of settlement or capitulation. There is a small
filing fee. If you survive the conference, the commission will
schedule a hearing a few months out.
Other civil service appeals involve discipline, layoff, job
titles, examination fairness, proper marking of examinations and
proper application of civil service law. In disciplinary appeals
the time limits are the shortest in any field: 10 business days for
an appeal to the Civil Service Commission. For a suspension of five
days or less, no hearing or other rights inure unless the employee
requests in writing a hearing from the employer within 48 hours of
the start of the suspension.
Provisional employees, the vast majority of public sector workers,
have scant civil service rights. One of the big legal arguments is
over the right to take a civil service examination, and whether the
appointing authority has a duty to give examinations. If the
appointing authority has not given examinations, are they stopped
from claiming that an employee they want to lay off is truly a
provisional employee?