De Blasio to seek more time to comply with law limiting use of temporary public workers

As the number of temporary municipal employees in New York City has continued to grow, Mayor Bill de Blasio appears poised to once again ask Albany to postpone a deadline to trim the city’s temp workforce as required by the Civil Service Law.

In the wake of a landmark court ruling, the state passed a law in 2007 giving the city five years to trim its provisional – or temporary – workforce. When the deadline approached, Albany gave the city two more years to decrease its provisional workforce by 8,600. Since then the city’s provisional headcount has grown instead, from 22,954 to 23,052.

Lisette Camilo, commissioner of the Department of Citywide Administrative Services, said the city was confident it would knock 5,233 people off the provisional tally by the end of 2016, when it will hire permanent employees from a list of administrative manager and staff analyst candidates. Still, she said the city would need another extension – and always anticipated receiving one.

“That was always the intention, when we submitted the initial one,” Camilo testified at a City Council hearing in March, noting that she was not sure how long of an extension the city would seek. “We still don’t have a final draft of a plan.”

This strategy, however, may face hurdles in Albany. State Sen. Martin Golden and Assemblyman Peter Abbate, the sponsors of the legislation that granted the city an extension in 2014, said they had requested an update from the city but had not received one.

“It is our understanding through discussions with the New York State’s Civil Service Commission that their primary goal has not been met,” Abbate, who is chairman of the Assembly Governmental Employees Committee, said in a statement. “I’ve been extremely discouraged by the city’s lack of action regarding the reduction of provisional employees in their ranks. … Mayor de Blasio has done little to discontinue this practice, despite initial optimism, and is now running out of time before the extension lapses and the city is no longer current with the law. I am concerned that another extension will only continue to postpone action.”

De Blasio’s office did not respond to requests for comment.

Without another extension from Albany, the city’s employment of more provisional workers than is legally allowed could open it up to lawsuits or wrangling with unions. In 2007, the New York State Court of Appeals ruled that provisional workers terminated in Long Beach, Nassau County, did not have arbitration rights their union claimed they did. The court also said the government misled these provisional workers into having an expectation of being employed beyond the nine months permitted under Civil Service Law.

Because New York City had so many provisional employees – about 19 percent of competitive titles at that time – the state passed legislation allowing it a window to work its way into compliance. Under the law, the city would achieve “substantial compliance” with the Civil Service Law once no more than 5 percent of competitive jobs were filled with temporary workers.

Organized labor has long opposed relying on provisional employees, who have fewer due process rights and less job security because they’re meant to temporarily fill jobs while the city gives exams, calculates results and makes permanent hires from the top scoring candidates. For the time being the city’s largest municipal union, District Council 37, is working with the administration to hash out a plan that will allow for an extension, but include reforms that prevent the city from finding itself in a similar situation when the next extension lapses, according to DC 37 Executive Director Henry Garrido. DC 37 represents the “lion’s share” of provisional employees and wants to see them transition into permanent positions, as opposed to being abruptly terminated en masse, according to Garrido and other union leaders.

“We have now as many provisionals as we had last year – that is a problem,” Garrido said. “I’m looking for big, sweeping change in the legislation tied to the extension that would allow us to finally, once and for all, deal with the issue of the 22,000 provisionals in a major scale across the city.”

In testimony before the City Council, DCAS officials said they have embarked on an “aggressive” schedule of giving civil service exams and reclassifying job titles with few workers so they fall outside the civil service sphere and do not count toward the city’s provisional tally. They said these efforts helped the city hit an all-time low of provisional staff by the end of 2014. However, the provisional count ticked up again because of attrition and the need to hire for new citywide initiatives, they said. Still, the officials said recently administered exams should help it cut more than 5,000 from the provisional count by the end of 2016.

Garrido praised the city for expanding its use of the civil service exams. But he said DCAS staff was too limited to administer enough tests to fully phase out provisional employees in the near future. The city could speed up hiring, Garrido said, by letting licenses stand in for exams when the licenses are a prerequisite for the post, such as for tech jobs that call for Cisco or Microsoft certification. Since the license-holders would appear equally qualified, Garrido suggested the city then use criteria similar to what it has historically used under education and experience tests, which assign points based on candidates’ demonstrated capabilities, rather than exams. In general, he said the city could rely on education and experience to transition provisional personnel into permanent positions.

Garrido and Local 1180 of the Communications Workers of America have also called on DCAS to use citywide candidate lists for titles instead of separate ones for each agency. Gerald Brown, a vice president of Local 1180, testified in March that the number of city provisional administrative managers had grown to 566, and some of these temporary hires could have been avoided if the city compiled and pulled from 17 agencies’ promotional lists, which collectively contained 1,225 administrative manager candidates.

Union leaders said they were opposed to moving titles with a large number of employees out of the civil service system. Garrido wants to assess what changes may be appropriate with the city on a title-by-title basis. He conceded that there are some positions that do not belong in the civil service system, such as assistants to borough presidents. By the time an exam was drafted, given and certified, there may be a new borough president in office, he said.

“I don’t believe, as labor, that we should simply be opposing that just because in the past it has been manipulated to take people out of the ranks,” Garrido said. “When you do that, you are taking resources that otherwise could be used to test for needed tests.”

Phasing out provisional status for emergency medical service supervisors, however, is a priority for Vincent Variale, president of the Uniformed EMS Officers Union Local 3621. Variale said he has been urging the city to recognize 120 captain, deputy chief and division chief positions as civil servant jobs, albeit without success.

Variale said he was concerned about bosses overlooking the best candidates to promote friends, but noted that supervisors also need the job protection a civil service title provides. During Hurricane Sandy, he noted, a chief was too nervous to disobey orders and remained in a flooding station on Manhattan’s waterfront until two lieutenants, who were civil servants, carried her out.

“She was afraid to make a decision because if she did and it was the wrong decision that went against her superior’s, she could be easily demoted,” Variale said. “When they left, that water rose about 8 feet in that station – they could have been killed.”