By Cynthia Devasia, Esq.
Many State and Local government jobs are part of the competitive class of the Civil Service and can only be filled by candidates who succeed on civil service examinations. In 1883, New York became the first state to establish a Civil Service system. As mandated by the state constitution, this system was created to make sure that government jobs were given to individuals based on their “merit” and “fitness” for a position, rather than based on who they know. Thus, New York State and its local governments administer open, competitive examinations designed to find the most qualified applicants for competitive class civil service positions. Competitive examinations are also administered for purposes of promotions as well. Positions in other civil service classifications, such as the non-competitive, exempt and labor class, do not require competitive examinations.
Over the years, there has been some controversy in the administration of the Civil Service system. Legal challenges to appointments or promotions have been brought over improper test administration and grading, and discrimination grounds. One of the biggest issues concerns the Civil Service Law provision known as the “rule of three” or “one in three” rule (“One in Three Rule”). Civil Service Law Section 61 allows public employers to choose individuals for appointment or promotion from the top three scores from an Eligible List. An Eligible Lists is the list of candidates who have passed civil service examinations, identified in order by their test score and from which State and Local agencies will hire or promote employees. The Civil Service uses a scoring methodology that first calculates a raw score (i.e. the number of questions correctly answered by a candidate), and then creates a band scoring table which groups the raw scores within certain ranges in the same band. As a result, all eligible individuals falling within a particular scoring band will tie for the same rank. In promotional examinations, typically, seniority credits will be applied to the raw score before a band score is applied. Veteran’s credits are also added in open-competitive and promotional exams after the score band is applied.
The rationale of the One in Three Rule is to allow employers to consider factors other than test scores when making appointment and promotions. However, many argue that the One in Three Rule actually undermines the fairness of the Civil Service system. As a result of score banding, often an employer is given a large number of people, not just the three top individual scorers, to choose from. Some say that the Rule allows for abuse by an employer who is given too much discretion and can pass over the highest scoring candidate in favor of someone who scored lower. In the case of promotional exams, the Rule has been described as encouraging an employer to pick favorites amongst top scorers. Anyone making a civil service challenge to a missed appointment or promotion based on a competitive exam, should also keep the One in Three Rule in mind. Because the public employer is granted the discretion to choose among the top three scores, even where a legal violation is found a court, generally speaking, many only order an employer to reconsider a candidate for a position. In other words, the One in Three Rule can restrict a court’s ability to directly appoint or promote someone and it is only under rare circumstances that a Court may do so.
If you believe you have been improperly passed over for a civil service appointment or promotion, please contact Isaacs, Devasia, Castro & Wien LLP to determine whether rights have been violated.
Cynthia Devasia, Esq. is an Associate in the Labor and Employment division at Isaacs, Devasia, Castro & Wien LLP. For more information on this topic you can contact her at 917.551.1352 or at cdevasia@idcwlaw.com.