Gov George Pataki has issued the call to review the civil service system to make it more flexible and responsive to the state's and employees' needs. But many people question whether this administration will be able to rise above key opposition that has thwarted so many attempts at change in the past public employee unions.
 
 

News of deals to keep state data processing jobs in Albany and to exempt a batch of provisional employees from a hiring freeze dominated headlines in September. Meanwhile, a far-reaching directive from the governor's office—one that may prove more significant to state workers in the long run—slipped by with little public notice. On Sept. 1, Gov. George Pataki quietly issued a call for a review of the state's civil service system.

 The statement was the first indication that the new administration would attempt to place its stamp on the 111 year-old system. But Pataki's call for reform was buried three paragraphs down in a letter to lawmakers that focused on the impact of the hiring freeze on state employees with provisional status. Still, Pataki's message was strong: A task force would develop recommendations "to make the civil service system more flexible and responsive to the needs of both the state and its employees," he stated in the letter.

 Pataki tapped George Sinnott, commissioner of the Department of Civil Service and president of the three-member Civil Service Commission, to head the task force. Sinnott says among the major changes he supports are expanding the Rule of Three--which requires that vacancies be filled from a list of people who had one of the top three scores on a particular civil service test—to a Rule of Ten. He says he also favors reducing the number of job titles and changing the content of promotional exams to make them more generic, among other proposals.

 Sinnott and his task force plan to meet with union officials to discuss how to improve the system. The group's recommendations are due to Pataki by Dec. 1 so they can be passed along to the Legislature. The task force's goal: make the system more flexible but maintain the bedrock of civil service hiring based on employees' merit and fitness.

 The public response so far to Pataki's directive has been lukewarm. Similar attempts in the past have been piecemeal, and recommendations for change largely have been ignored. "I can't think of one issue in civil service that has strong support, or opposition for that matter, by a unified voice," says John Galligan, a labor relations and civil service specialist for the New York Conference of Mayors (NYCOM). "That makes it hard for these [studies] to go anywhere."

 Assemblyman Eric Vitaliano (D-C, Staten Island), says the governor's call for reform is a response to the recent provisional employee snafu. Some state workers are appointed by the governor to provisional jobs when there is no exam offered for that position. They receive none of the security or benefits that a classified public employee receives, and they serve at the pleasure of the governor. Provisional employees in recent years have asked for competitive exams to make their positions permanent. Their call was answered in August, but because of Pataki's hiring freeze, people who were eligible for permanent status risked losing their jobs.

 In his letter to lawmakers, Pataki said provisional employees who took exams and were eligible for hiring would be exempt from the hiring freeze. But, Vitaliano says, the call for reform included in that letter may be an attempt to placate a public work force outraged by the provisional situation. "He was sort of caught with his pants down in a way with this whole business," says Vitaliano, chairman of the Assembly Governmental Employees Committee. "The idea might have been, 'We blew this one, so we're putting this task force together so we don't blow the next one.'"

 Eileen Long, a spokeswoman for Pataki's office, denies the charge, saying the call for reform stemmed from the governor's overall commitment to make government more efficient and less expensive. She says the governor will not comment on any civil service reform proposals until he receives the task force's report.

 Those who do advocate reform say they are glad to see that the governor and Commissioner Sinnott are of a similar mind. But they recognize the force that traditionally has kept—and may continue to keep—major reform efforts at bay: the public employee unions.

 For the first century of New York's state hood, hiring was done without limitation to appropriating power. Employees were subject to the spoils system, meaning those who did favors for their political bosses received government jobs. In 1881, President James Garfield was shot by a mentally disturbed federal employee. resulting in a call to insulate public employees from the political process. In New York, Assemblyman Theodore Roosevelt piloted a reform bill through the Legislature, which Gov. Grover Cleveland signed into law as the New York Civil Service Law of 1883. The law required that state employees be hired on the basis of merit and fitness to be ascertained by competitive examinations. At the Constitutional Convention of 1894, it was expanded to include local governments and became the framework for today's system. With it came the Rule of Three.

 Expanding the Rule of Three—a move that requires legislation—is a reform proposal that draws support from organizations like NYCOM and the New York State Association of Counties (NYSAC), groups that say the rule makes hiring more difficult. But expanding the pool of candidates has garnered the most opposition from public employee unions like the Civil Service Employees Association (CSEA), the Public Employees Federation (PEF), and Council 82.

 Studies of the system dating as far back as 1977 have stated that governments would be better served if those doing the hiring could choose from more than just the the top three scores. Their key arguments: One's numerical score on a civil service exam does not paint an accurate picture of him or her; and a person who may make an excellent public employee but is not a good test taker becomes unreachable on the list of eligible candidates because of a lower score.

 Alan Schneider of the Suffolk County Department of Personnel says the Rule of Three poses another problem to large municipalities that have hundreds and sometimes thousands of people applying for civil service positions. When the county offers an exam for a given position, the list of people with passing scores circulates throughout the county's 245 jurisdictions until another exam is given. As people in the top three are placed in jobs, candidates with the next highest scores move into the eligible ranks.

 But the system does not always run smoothly. As an example, Schneider says, two of the top three candidates on a given list are hired, but one is passed over repeatedly because he or she does not meet office standards of cleanliness and neatness. That person moves into the top position. After another 20 candidates are hired, another person who moved into the top three is passed over because he or she has a prejudice against the supervisor. Then a former public employee who was fired by one jurisdiction but took the test again moves into the third position. No one else can be hired until those three candidates are placed, he says.

 "There are hundreds of examples of that," says Schneider, who was also past president of the New York State Association of Personnel and Civi1 Service Officers. "It's the opposite of the cream rising to the top. It's the people that nobody wants rising to the top, the ones who can't speak or answer the phone properly, while there are great people lower on the list who just didn't score as well who can't be reached."

 But officials at CSEA—the state's largest union, with 265,000 members—and PEF—which has 55,000 members in scientific and professional jobs—argue that expanding the Rule of Three sounds too much like the spoils system to be palatable. "I'm not saying that it's going to open the door to wholesale patronage," says Donald Kelly, CSEA research director. "But for those few bad apples looking to hire their cousins, that's why we need protection."

 Robert Riordan, who serves with Sinnott and Virginia Apuzzo on the Civil Service Commission, says he also opposes the Rule of Ten. "To water it down and to minimize [the importance of a test score] without reason, why that's outrageous," he says. "Number one, number two and number three are the ones you interview because they're the best. The only reason you've got to go down to number 10 is because he is your brother-in-law."

 "I have been a commissioner for eight years, and I have never heard an argument that says Teddy Roosevelt's system doesn't bring in the best and the brightest," Riordan adds.

 John Zagame, executive director of NYSAC, says those arguments are outmoded. "The civil service system is a holdover from an era where there was concern about political patronage. That era has passed," he says.

 Regardless of the patronage issue, Kelly argues that managers have a considerable amount of flexibility in hiring under the Rule of Three, and they have the final decision on whether to use that flexibility. For example, personnel officers can choose not to fill a vacancy until another test is given and another list of eligible candidates is created, or they can fill the vacancy with a temporary employee.

 Using Schneider's hypothetical list of unwanted candidates, personnel officers can hire those people and help them to overcome their problems. If counseling or education does not work, the employees can be fired during a given probation period and someone else off the eligible list can be picked to fill the post. "It's not a very popular thing to do. But it is a tool that managers have," Kelly says. "Managers have to manage."

 Sinnott and other proponents of the Rule of Ten maintain that the Rule of Three was developed at a time when the work force was smaller and vacancies arose only occasionally. In 1976, 27 of 50 states hired by it. Now, New York is one of only three states that have kept the system. The rest pick candidates from a broader pool, a fact that Sinnott says the unions must consider. "This is more of a perception issue with the unions," he says. "But it seems to me that this isn't an issue for George Sinnott or George Pataki. Forty-seven other states have abandoned the Rule of Three. That should say something."

 Sinnott adds that he is willing to consider a compromise on the Rule of Ten, such as having a two-year sunset period and evaluation of the program written.

 The Civil Service Commission's Apuzzo says she would rather see a Rule of Five as a compromise if it will maintain friendly relations with the unions. "I applaud George for looking beyond the Rule of Three.... But I'd rather have everyone come together and move forward than have half the team walk away because they are ticked off."

 Some union officials, like James Sheedy, PEF's executive director, say they are willing to seek compromise. "Picking one in five may have some substance," he says. "But one in 10 will never have any substance."

 Once unions decide whether to join the effort, the next step is to sell the proposal to the Legislature. NYSAC Deputy Executive Director Steve Acquario says his organization plans to blanket the Capitol again this year with calls for the Rule of Ten, although prior attempts have been unsuccessful. "We're concentrating on one issue, and this is the issue," he says. "This is what our members are calling for."

 Legislators in both houses, regardless of political party, say any deviation from the Rule of Three is not likely to go anywhere without a union stamp of approval. Last year, state Sen. Ceasar Trunzo (R-C, Brentwood), chairman of the Civil Service and Pensions Committee, sponsored Rule of Ten legislation on which lawmakers never voted. This year, he decided union opposition was too strong. "I can see all kinds of political problems developing, and the unions aren't too keen on that," he says. "I don't see anything happening on Rule of Ten legislation."

 Despite union opposition, Assemblyman David Gantt (D-Rochester) sponsored Rule of Ten legislation for his house this past session. Again, the Legislature did not vote on it, but Gantt says he is not ready to drop the issue. In fact, he says Sinnott's support of the Rule of Ten makes him more confident that such legislation will pass. "Minorities who are taking civil service exams don't necessarily finish in the top three," he adds. "If we want the employees that reflect the makeup of this state, we have to increase the pool of candidates for jobs."

 If unions and lawmakers resist legislation to expand the Rule of Three, Sinnott says he will consider using his authority to allow zone scoring on exams to expand the base of eligible job candidates. On a typical exam, a person could miss making the top three scores by a tenth of a point. Zone or "band" scoring would mean that anyone receiving a score between 95 and 100 on an exam, for example, could move into the top position on the list of eligible job candidates, thus expanding the pool.

 Under Civil Service Law, Sinnott can pick exams to be zone scored without approval from lawmakers. Though he has not decided how to divide the bands, Sinnott says zones of scores will not exceed a spread of 5 points. "I'm leaning toward that, but I want to talk to the unions first," Sinnott adds. "But there is a lot of latitude in my position that my predecessors haven't used. And I have no compunction whatsoever to take it."

 PEF's Sheedy says that zone scoring is acceptable "within reason." CSEA's Kelly agrees, saying, "We are opposed to it, but perhaps some consensus can be reached.... If it's between that and the Rule of Ten, then we have to look at our options."

 There are reforms recommended by past studies and advocated by Sinnott, however, that have gained support from most interested parties. One area is reducing the number of job titles. According to a May 1995 State Academy for Public Administration report, there are some 6,600 job titles for the state, of which 4,500 are competitive, meaning applicants must pass a test to be eligible for the position. Of those, 2,100 have only one person working in that position.

 PEF's Sheedy says he agrees that there are too many titles—there are 3,000 covered by PEF alone. But that number has a tendency to expand and contract with technological development and economic development. He adds that when he started in civil service 36 years ago, the titles were more generic.

 Commissioner Apuzzo cautions that reductions to the number of titles must be made with workers' concerns in mind. "Workers worry what will happen to their seniority. We need to protect them when we make these changes," she says.

 Sinnott says he also is looking to make promotional tests more generic to broaden employees' opportunities. His initial plan would condense hundreds of the tests—which currently are based on the specific position an employee is seeking—into three levels: supervisory, administrative and managerial. Employees who pass a promotional exam can then hold onto their score and wait for a position in their department to open, or they can get additional training to move to another department if they are qualified. CSEA's Kelly says the union would support the idea as tests are done without compromising seniority and the integrity of positions.

 Sinnott says he remains positive that change for the better is on the way. "Most things the department does, it does well under the parameters," Sinnott adds. "What we have to do is change the parameters. The system just doesn't work this way." 

Amy Terdiman is associate editor of Empire State Report.