Civil service law today

Issue April 2014 By Galen Gilbert

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?