Public Employee Press

Roberts hits 1-in-3 civil service loophole

By GREGORY N. HEIRES

The union is pressing the city to change its policy on appointments and promotions. DC 37 Executive Director Lillian Roberts recently wrote Martha K. Hirst, commissioner of the Dept. of Citywide Administrative Services, to express the union’s objection to use of the “one-in-three” rule.

The city applies the rule when it selects people for appointments and promotions from civil service lists. Under the rule, the city may select one of the three highest-ranking eligibles on the list, which lets management skip over individuals.

“The Union believes that using the one-in-three rule creates opportunities for ­patronage, by allowing an agency head to pass over successful test-takers,” Roberts said in her letter to Hirst.

By ending the practice, the city would restore the historic purpose of the civil service system, which was designed ­decades ago to eliminate favoritism, cronyism and political patronage in hiring and promotion.

In the case of promotion exams, where employees have passed probation and served successfully in a lower title, using the one-in-three rule is especially unfair because promotion from within is one of the fundamental cornerstones of the civil service system.

“If a competent employee has been on the job for some time and successfully passes an exam, why not promote him or her?” asked Associate Director Evelyn Seinfeld of the DC 37 Research and Negotiations Dept.

The rule can also lead to a widespread reliance on provisional employees. If an employer applies the rule ruthlessly, an exam list can quickly be “exhausted,” or used up, which may allow the agency to hire provisionals from the outside.

The law doesn’t require the use of the one-in-three rule, said Eddie Demmings, general counsel of the union. So, the city could simply decide to abandon the rule and appoint in list order, as some agencies already do.

During the administration of Mayor Abe Beame in the 1970s, agency heads were required to obtain permission from the mayor’s office before they could pass over any successful test-taker. The union seeks a policy change that would ensure appointments from promotion lists are made in strict list order.

Arbitrary and discriminatory
“At the core, the one-in-three rule is a tool that can exclude people in an arbitrary and discriminatory manner even before they have been given a chance to show they can do the job,” said Demmings.

As an example of abuses caused by the rule, he cited the case of a member who filed a successful age discrimination complaint against the Parks Dept. at the federal Equal Employment Opportunities Commission. Although he was fifth on the Park Supervisor II list, the agency failed to promote him. Except for him and two others, the first 25 were promoted. The EEOC ruled in his favor, and he later received $35,000 and a promotion in the settlement of a federal lawsuit.

In November, Roberts submitted testimony at a hearing on the one-in-three rule before the City Council Civil Service and Labor Committee, which has set another hearing for June 29.