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Distinguishing between ?confidential employees? and ?confidential positions?

By Harvey Randall, Esq.

Distinguishing between ?confidential employees? and ?confidential positions?
A commentary

A PERB decision [Matter of Patchogue-Medford CSD and CSEA, E2417, ALJ Cacavas] demonstrates the importance of distinguishing between confidential employees and confidential positions as well the distinction between a ?confidential employee? for Taylor Law purposes and an employee serving in a ?confidential position? for Section 75 purposes.

First, a designation as ?confidential? for the purposes of the Taylor Law is conferred upon an individual in his or her personal capacity ? it is not the position in which the individual serves that is designated ?confidential.?

In contrast, the designation of ?confidential? for the purposes of Section 75.1(c) with respect to officers and employees in positions in the noncompetitive class vests such status in the position rather than the incumbent of the position so designated.

Insofar as a Taylor Law ?confidential? designation is concerned, Civil Service Law Section 201.7(a) [the Taylor Law], in pertinent part, provides:

7. (a) The term ?public employee? means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include ? persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer to the appropriate board ....Employees may be designated as confidential only if they are persons who assist and act in a confidential capacity to managerial employees described in clause (ii) [emphasis supplied].

Clause (ii) provides ? Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment [emphasis supplied].

So, in a nutshell, for the purposes of the Taylor Law, ?persons? [not positions] may be designated confidential by PERB or by a mini-PERB, as the case may be, except ?confidential investigators employed in the department of law are ?confidential employees? for the purposes of the Taylor Law by reason of the position in which they serve as a matter of law.

As to the application of Section 75.1(c) to certain officers and employees, i.e., officers and employee appointed to positions in the noncompetitive class, here the law provides:

(c) an employee holding a position in the non-competitive class other than a position designated in the rules of the state or municipal civil service commission as confidential or requiring the performance of functions influencing policy, who since his last entry into service has completed at least five years of continuous service in the non-competitive class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy [emphasis supplied].

Thus the designation of the position as ?confidential? for the purposes of Section 75.1(c) is made by the adoption of a rule by the responsible civil service commission to that effect, which rules in the case of a political subdivision of the State must be approved by the State Civil Service Commission.

Accordingly, a Section 75.1(c) ?confidential? designation of a position must be distinguished from a Taylor Law ?confidential? designation of an individual although it is possible that a particular individual could be designated confidential for the purposes of Article 14 of the Civil Service Law [the Taylor Law] and simultaneously be employed in a position designated as confidential within the meaning of Civil Service Law Section 75.1(c).

Positions designated ?confidential? for the purposes of Section 75.1(c) are identified in the Rules of the responsible commission [see, for example, 4 NYCRR Appendix II] with a symbol such as ??? to indicate that these are positions which have been designated as ?confidential.? For example,

? Secretary 2 (3) [i.e., there are 3 ?Secretary 2? positions designated ?confidential? although there may a greater number of ?Secretary 2? positions in the department or agency]

or

? Keyboard Specialist 3 (1) [i.e., there is one Keyboard Specialist position designated ?confidential? although there may a greater number of ?Keyboard Specialist 3? positions in the department or agency.]

Further, the concept of ?confidential? for the purposes of the Civil Service Law predates the concept of ?confidential? within the meaning of the Taylor Law.

If, however, the individual serving in a position designated ?confidential? for the purposes of Section 75.1(c) is:

[1] a veteran who served in time of war; or

[2] an exempt volunteer firefighter or

[3] ?an employee in the service of the City of New York holding a position as Homemaker or Home Aide in the non-competitive class, who since his last entry into city service has completed at least three years of continuous service in such position in the non-competitive class?

within the meaning of Civil Service Law Section 75.1(b), court rulings suggest that such status trumps the limitations set out in 75.1(c) insofar as Section 75 administrative due process is concerned and that such an individual is entitled to a pre-termination hearing consistent with the due process requirements set out in Civil Service Law Section 75.

As many Taylor Law collective bargaining agreement disciplinary procedures incorporate Section 75 by reference to identify those individuals in the collective bargaining unit covered by the contract disciplinary provision, it appears that this would be the case with respect to such contract disciplinary grievance and arbitration procedures as well.

Full post as published by New York Public Personnel Law on April 08, 2008 (boomark / email).