When New York City changes its civil service classifications to comply with a city council mandate, do the changes still need State Civil Service Commission approval and a notice-and-hearing process?

Plain-English summary

New York City's Department of Citywide Administrative Services forwarded several resolutions to the State Civil Service Commission. The resolutions modified the City Personnel Director's rules for jurisdictional classification of positions in the City's classified civil service, reclassifying numerous positions and adding significant numbers of new titles. The City Department took the position that no public hearing was required under Civil Service Law § 20(2) and that the State Commission had no authority to disapprove the changes; the City said the Commission's role was just to note the changes in its records. The City's argument: the changes were necessary to conform the rules to a New York City Council mandate, and § 20(2)'s exemption from notice-and-hearing for changes "required by a change in any statute" should cover them.

The State Commissioner asked the AG for an opinion on both the approval question and the notice-and-hearing question.

Approval by the State Civil Service Commission. The AG read the statute straight. Civil Service Law § 20(2) provides that rules and modifications adopted by a city civil service commission or personnel officer "shall be valid and take effect only upon approval of the mayor . . . and the state civil service commission." The plain language reaches rules of any kind, including those mandated by local enactment. Court decisions had read this strictly: Matter of Joyce v Ortiz, 108 AD2d 158 (1st Dept 1985), modified on other grounds, 116 AD2d 70 (1st Dept 1986), reviewed resolutions of the New York City Department of Personnel reclassifying fire chief and deputy chief positions, and held that "reclassification of a position from the competitive to the noncompetitive or exempt class can only be accomplished by the manner set forth in Civil Service Law § 20. . . . [R]esolutions purporting to reclassify titles are invalid where they are not adopted in accordance with the statutory requirements." Matter of Corrigan v Joseph, 304 NY 172 (1952), and Matter of Burri v Kern, 180 Misc 74 (Sup Ct NY Co), affd, 266 AD2d 841 (1st Dept 1943), affd, 291 NY 776 (1944), held similar resolutions invalid for failure to obtain State Civil Service Commission approval. So the rule changes here could not take effect without the Commission's approval.

Notice and hearing. Section 20(2) requires a public hearing on three days' notice for all rule modifications, with one carve-out: "notice and public hearing shall not be required upon the adoption or modification of a rule which is required by reason of a change in any statute in order to conform the rule to such statute." The City said this carve-out exempted modifications mandated by the City Council's local-law actions. The AG read "statute" narrowly, to mean a State enactment only.

Three reasons. First, constitutional. NY Const Art V, § 6 requires civil service appointments and promotions in every State subdivision (cities and villages included) to be based on merit and fitness, ascertained by competitive examination where practicable. The § 20(2) procedural requirements (notice, hearing, State approval) promote uniform statewide adherence to that constitutional mandate. Reading the exemption to include local mandates would let localities reshape classification rules without statewide oversight, potentially undermining merit-and-fitness uniformity. The Court of Appeals' holding in Matter of Corrigan v Joseph, supra, on the predecessor statute (Civil Service Law (1909) § 11) supports this reading, as does Klipp v New York State Civil Service Commission, 42 Misc 2d 35 (Sup Ct Suffolk Co), affd, 22 AD2d 854 (2d Dept 1964), affd, 15 NY2d 880 (1965).

Second, historical. The notice-and-hearing requirement was added in 1941 (L 1941, ch 933) to make local commissions deliberate before changing their rules and to give the public an interest and a voice. The State Commission, in recommending the legislation to Governor Lehman, and the Civil Service Association and Civil Service Forum, in supporting it, identified the harm of last-minute rule changes that left employees uncertain about their employment rules. That policy applies equally regardless of whether the local action is a unilateral local commission decision or a response to a local-council mandate.

Third, structural. The "statute" exemption was added in 1958 when the Civil Service Law was recodified (L 1958, ch 790). It does not expressly limit itself to State enactments, but the AG read it in light of the statewide merit-and-fitness requirement. Citing the Klipp decision, the AG recognized an exemption from State Commission approval as well as notice and hearing when a State statute mandates the change. A State legislative act would take effect regardless of those local procedures; a local enactment does not receive that exemption.

The bottom line: the rule changes the City Department sent up needed both the notice-and-hearing process and State Civil Service Commission approval before taking effect. The exemption for "statute"-required changes did not save them.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the "jurisdictional classification" of a civil service position?

Civil service positions are divided into classes (competitive, non-competitive, exempt, labor) that determine how the position is filled and how the employee is protected. Jurisdictional classification, set by rule under Civil Service Law § 20, places each title in one of these classes. The choice between competitive (open exam, score-based hiring) and non-competitive or exempt (other selection processes) has substantial consequences for both the hiring agency and employee rights.

Why does the State Civil Service Commission have to approve city civil service rules?

To enforce the constitutional merit-and-fitness mandate uniformly across the State. Civil Service Law § 20(2) channels local rulemaking through a State approval gate so that no city can use its own classification scheme to undercut the competitive-examination requirements. The Court of Appeals confirmed in Matter of Corrigan v Joseph that State Commission approval is a prerequisite to the validity of local rules.

What's a "patchwork of varying classifications" problem?

If different cities classified the same kind of position (e.g., police lieutenant, building inspector) into different classes (competitive in one, non-competitive in another), employees moving between jurisdictions would face very different protections, and the State's central merit-and-fitness commitment would erode. § 20(2) is designed to keep classification consistent at the State level even though local commissions do the day-to-day work.

What if New York City's elected officials genuinely want a particular reclassification?

The opinion says changes required by a local enactment must go through notice, hearing, and State Commission approval. It also says that changes mandated by a State statute are exempt from those procedures.

Are there ever local-mandate civil service changes that don't need State approval?

The AG said the exemption for changes required by a State statute covers State Commission approval as well as notice and hearing, citing the Klipp decision. It did not apply to the City Personnel Director's changes made under a City Council mandate.

Background and statutory framework

NY Const Art V, § 6 is the constitutional anchor for merit-and-fitness civil service. It commits the State to a competitive-examination system as the default for civil service appointments and promotions throughout the State and its subdivisions.

Civil Service Law § 20(1) gives municipal civil service commissions the power to prescribe, amend, and enforce rules to give effect to the Constitution and the Civil Service Law. § 20(2) sets the procedure: public hearing on three days' notice, mayor's approval, State Civil Service Commission approval, filing with the Secretary of State. Once filed, the rules have the force and effect of law.

The 1941 amendment (L 1941, ch 933) that added the notice and hearing requirement responded to local-commission practices of rapid rule changes that left workers and the public without time to react. The 1958 recodification (L 1958, ch 790) added the narrow exemption for changes required by statute.

The opinion cites Joyce, Corrigan, Burri, and Klipp in its discussion of Civil Service Law § 20 and its predecessor.

Citations

• NY Const Art V, § 6 (constitutional merit-and-fitness mandate).
• Civil Service Law (1909) § 11 (predecessor to § 20, requiring State Civil Service Commission approval).
• Civil Service Law § 20 (municipal civil service commission rulemaking authority).
• Civil Service Law § 20(1) (rulemaking power).
• Civil Service Law § 20(2) (notice, hearing, mayor approval, State Commission approval; State-statute exemption as construed in the opinion).
• L 1958, ch 790 (1958 recodification adding "statute" exemption).
• L 1941, ch 933 (1941 amendment adding notice and hearing requirements).
• Matter of Joyce v Ortiz, 108 AD2d 158 (1st Dept 1985), modified on other grounds, 116 AD2d 70 (1st Dept 1986) (resolutions reclassifying titles invalid without statutory compliance).
• Matter of Corrigan v Joseph, 304 NY 172 (1952) (State Commission approval as prerequisite to validity).
• Matter of Burri v Kern, 180 Misc 74 (Sup Ct NY Co), affd, 266 AD2d 841 (1st Dept 1943), affd, 291 NY 776 (1944) (similar holding).
• Klipp v New York State Civil Service Commission, 42 Misc 2d 35 (Sup Ct Suffolk Co), affd, 22 AD2d 854 (2d Dept 1964), affd, 15 NY2d 880 (1965).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/98-F3_pw.pdf

Original opinion text

NY CONST, ART V, § 6; CIVIL SERVICE LAW (1909) § 11; CIVIL SERVICE LAW § 20; L 1958, CH 790; L 1941, CH 933. The procedures set forth in Civil Service Law § 20(2) apply to modifications of the rules of the New York City Personnel Director made pursuant to local law mandate. Under the terms of the statute, such modifications may not become effective without compliance with the notice and hearing requirements and approval by the State Civil Service Commission. March 12, 1998 Hon. George C. Sinnott Commissioner Department of Civil Service State Campus Albany, NY 12239

Formal Opinion
No. 98-F3

Dear Commissioner Sinnott:
Your counsel has requested an opinion concerning Civil Service Law § 20(2) as it applies to rules established by the New York City Department of Citywide Administrative Services ("City Department"). Your counsel has advised us that the City Department has forwarded to the State Civil Service Commission ("Commission") several resolutions containing modifications to the City Personnel Director's rules for the jurisdictional classification of positions in the classified civil service of the City of New York. He has advised us that these modifications reclassify numerous positions and add significant numbers of new titles not previously included in the rules. Your counsel states that the City Department has asserted that no public hearing regarding these rule changes is required under Civil Service Law
§ 20(2) and also contends that the Commission has no authority to disapprove the proposed changes and must simply note them in its records. The City Department asserts that section 20(2) does not apply because the rule changes are necessary to conform the rules to the mandate of the New York City Council. You have asked whether, under the State Civil Service Law, this action by the City Department, which modifies the local rules by establishing new titles and reclassifying existing titles, is subject to notice and hearing requirements and review and approval by the Commission. You also ask whether the modifications at issue, which were enacted to comply with the mandate of the New York City Council, fall within the statutory

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provision exempting modifications required by statute from the notice and hearing requirements. Civil Service Law § 20(1) authorizes municipal civil service commissions to "prescribe, amend and enforce" rules to give effect to the provisions of the Constitution and the Civil Service Law, including, among other things, rules for the jurisdictional classification of the offices of the municipal civil service. Subsection 20(2) establishes the procedure for the adoption of such rules by local commissions. It provides that: Such rules, and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof. . . . Notwithstanding the provisions of this subdivision, however, notice and public hearing shall not be required upon the adoption or modification of a rule which is required by reason of a change in any statute in order to conform the rule to such statute. The subsection also provides that: The rules and any modifications thereof adopted by a city civil service commission or city personnel officer shall be valid and take effect only upon approval of the mayor
. . . and the state civil service commission.
. . . Any such rule or modification thereof shall be filed with the secretary of state within thirty days after final approval thereof by the state civil service commission. Such rules shall have the force and effect of law when filed with the secretary of state. Id., § 20(2). We note that courts have required strict compliance with section 20(2). In Matter of Joyce v Ortiz, 108 AD2d 158 (1st Dept 1985), modified on other grounds, 116 AD2d 70 (1st Dept 1986), the court reviewed several resolutions of the New York City Department of Personnel affecting the titles of fire department chief and deputy chief. Among other things, the

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resolutions reclassified the positions. The court held the reclassification invalid for several reasons and also found that: reclassification of a position from the competitive to the noncompetitive or exempt class can only be accomplished by the manner set forth in Civil Service Law § 20. . . . Respondents failed to comply with the procedural prescriptions outlined in the Civil Service Law and the New York City Charter. No notice, no hearings, and no review or approval by the State Civil Service Commission either preceded or followed the promulgation of the resolutions. In that connection, resolutions purporting to reclassify titles are invalid where they are not adopted in accordance with the statutory requirements. Joyce, 108 AD2d at 164. (Citations omitted.) In Matter of Corrigan v Joseph, 304 NY 172 (1952), the Court recognized that Civil Service Law (1909) § 11, the predecessor to section 20, required approval by the State Civil Service Commission as a prerequisite to the validity of local rules. The Court therefore held invalid certain resolutions of the New York City Municipal Civil Service Commission that purported to establish grades for particular positions, because no wage schedule had been created or approved by the State Civil Service Commission. See also, Matter of Burri v Kern, 180 Misc 74 (Sup Ct NY Co), affd, 266 AD2d 841 (1st Dept 1943), affd, 291 NY 776 (1944), in which the court held that a resolution of the New York City Municipal Civil Service Commission that was intended to modify an existing grading resolution was invalid because the enactors did not obtain approval of the State Civil Service Commission in compliance with Civil Service Law § 11. In our view, by the plain language of the statute, the rule changes at issue here are subject to the approval requirements of section 20(2). The changes cannot take effect without the approval of the State Civil Service Commission. As to the notice and hearing requirements of section 20(2), you state that the changes are mandated by the New York City Council. By its terms, section 20(2) imposes notice and hearing requirements for adoption and modification of all rules other than those mandated by "statute". At issue is whether the exception from the notice and hearing requirements for changes mandated by statute applies to local as well as State enactments.

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The Commission recommended enactment of the public hearing and filing requirements to cause local commissions to give thoughtful consideration to amendments of their rules and to foster greater interest in and understanding of the rules by the public. Memorandum from Commission to Governor Lehman, Bill Jacket, L 1941 ch 933. The Civil Service Association and the Civil Service Forum submitted letters in support of the legislation, stating that it would prevent local commissions from making many changes to their rules on very short notice, which often left employees uncertain as to what rules governed their employment. April 12, 1941 and April 14, 1941 letters to Governor Lehman, Bill Jacket, L 1941 ch 933. The provision exempting rule changes made "by reason of a change in any statute" from the notice and hearing requirements was added in 1958 when the Civil Service Law was recodified. L 1958, ch 790. While the added language does not expressly limit itself to State enactments, in our view, the provision is best given effect by reading "statute" as a reference to a State law, rather than a local enactment. There is a sound constitutional basis for this interpretation. The provisions of subsection 20(2) give effect to Article V, section 6 of the New York State Constitution, which provides that: 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. The notice, hearing and approval requirements of section 20(2) promote uniform State-wide adherence to this constitutional mandate by municipal civil service commissions. We believe that the exemption from the notice and hearing requirements (§ 20[2]) and exemption from the approval process (Klipp v New York State Civil Service Commission, 42 Misc 2d 35 [Sup Ct Suffolk Co], affd, 22 AD2d 854 [2d Dept 1964], affd, 15 NY2d 880 [1965]) should be read to apply only to rules or modifications enacted to conform with a mandate of the State Legislature. In that circumstance, the legislative process would insure adherence to constitutional mandates on a State-wide basis. Thus, we conclude that rules resulting from local enactments should be subject to the statutory requirement of notice and

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hearing as well as Commission approval. The State Legislature can modify classification requirements, consistent with the Constitution's merit and fitness requirements, with a State-wide perspective. If the exemption for rules mandated by "statute" encompassed changes required by local enactments, a myriad of different rules might result, jeopardizing constitutional requirements. Local governments may have parochial concerns at odds with the provisions of the Constitution. A patchwork of varying classifications of similar positions in the various jurisdictions may result. In our view, this was not the intent of the Legislature. Further, an act of the State Legislature would take effect regardless of this section's local notice, hearing and approval requirements. Therefore, it is reasonable to conclude that the Legislature chose not to require notice, hearing and approval for rule changes mandated by State statute. We conclude that the notice, hearing and approval procedures set forth in Civil Service Law § 20(2) apply to the modifications of the rules of the City Personnel Director at issue here, which include the establishment of new titles and the reclassification of existing titles. The exemption from the notice, hearing and approval requirements for rules or rule changes that are required by a change in a statute does not, in our view, apply to rule changes made to conform to local enactments. Very truly yours,

DENNIS C. VACCO
Attorney General