ST ATE OF NEW YORK

SUPREME COURT CHAMBERS

RENSSELAER COUNTY COURTHOUSE
TROY, NEW YORK 12180
(518) 285-6159

RICHARD J. McNALLY, JR.

KEITH A. MUSE

JUSTICE

LAW CLERK

August 19, 2016

John Svare, Esq.
1168-70 Troy Schenectady Road
PO Box 12414
Albany, NY 12212
Re : Wayne Spence v NYS Dept. Of Civil Service
Index No.: 4510-15
Dear Counsel:
Enclosed please find a Original Decision & Order in connection with the above-entitled
proceeding.
Please file the Original Decision & Order with the Albany County Clerk's Office and
serve accordingly.
Sincerely,

Richard J. McNally, Jr.

Supreme Court Justice
RJM/mjs
encl.

Adr:er1te-

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cc: Joshua Farrell, Esq.

Asst. Attorney General
Office of the Attorney General
The Capitol
Albany, NY 12224

At a Special Term of the Albany County

Supreme Court, held in and for the County
of Albany, in the City of Albany, New York,
on the / v I"'\ day of August 2016

PRESENT: HON. RICHARD J. MCNALLY, JR.

JUSTICE
STATE OF NEW YORK
SUPREME COURT

COUNTY OF ALBANY

In the Matter of the Application of

WAYNE SPENCE, as President of the NEW YORK ST ATE
PUBLIC EMPLOYEES FEDERATION, AFL-CIO; and
JOHN-DAVID WOOD,
Petitioners,

For a Judgment Pursuant to Article 78 of the

Civil Practice Law and Rules

DECISION AND ORDER

INDEX NO. 4510-15

-against-

The NEW YORK STATE DEPARTMENT OF CIVIL

SERVICE, and the Commissioner of the New York
State Department of Civil Service; CAROLINE W. AHL
and JEANIQUE GREENE, together constituting the NEW
YORK STATE CIVIL SERVICE COMMISSION; and
ANDREW M. CUOMO, as Governor of the State of New York,
Respondents .
APPEARANCES:

LISA M. KING, ESQ.

Attorneys for Petitioners
(John D. Svare, Esq. of Counsel)
1168-70 Troy Schenectady Road
P.O. Box 12414
Albany, New York 12212

HON. ERIC T. SCHNEIDERMAN

Attorney General for the State of New York
Attorneys for the Respondent
(Joshua Farrell, Esq. of Counsel)
Assistant At~orney General
The Capitol
Albany, New York 12224

MCNALLY, J.:
Petitioners commenced this CPLR Article 78 proceeding challenging a decision by the
New York State Civil Service Commission to classify 230 positions that were established by the
Governor's Empire State Fellows Program and Student Intern Program as a non-competitive
jurisdictional class. The petitioners maintain respondent's failure to require competitive exams
for the positions was in violation of Article V 6 of the New York State Constitution, Civil
Service Law ("CSL") 42 and 44 and Article 2 of the State Administrative Procedure Act
("SAP A"). Petitioners contend the actions of the respondents were arbitrary and capricious and
lacked a rational basis. The respondents oppose the Petition and allege the petitioners have failed
to state a cause of action pursuant to CPLR 321 l(a)(7).
In February 2015, Governor Cuomo launched a program to recruit young professionals
and colleges students to serve in state government as the next generation of policy makers. The
new initiative was designated the Empire Fellowship Program which sought to recruit a new
class of leaders for New York State government by establishing high level temporary positions
that concentrate on confidential policymaking and managerial duties. The initiative is a
temporary twenty-four month fellowship program. The first fellowship, Empire State Fellowship
Program ("Empire State"), sought leaders from professionals who have already obtained a level
of career distinction. The second program, Excelsior Service Fellowship Program ("Excelsior

Service") sought to recruit recent graduates of colleges, graduate schools and law schools. The
recruits would be placed in specialized temporary assignments within the Executive Branch. The
recruits would report to exempt jurisdictional class officials such as Commissioners, Deputy
Commissioners or Executive Chamber employees
On March 25, 2014, the Office of General Service ("OGS") requested the New York
State Civil Service Commission ("CSC") to amend the Rules for Classified Service in order to
add 230 new non-competitive jurisdictional class positions titled "Empire Fellow". OGS
maintains since the Empire Fellowship Program was a temporary twenty-four month program, it
was not practical for a competitive examination to be administered for the new positions. On
April 7, 2014, the petitioners notified the CSC that they opposed the request of OGS. On April 8,
2014, the CSC approved the request of OGS. On May 21 , 2014, the Notice of the proposed rule
change was published in the State Register. The Notice refereed to the January 22, 2014 State
Register publication for its Regulatory Impact Statement ("RIS"), Regulatory Flexibility Analysis
("RF A"), Rural Area Flexibility Analysis ("RAF A") and Job Impact Statement("JIS"). The
Notice also provided for a forty-five day period for public comment. On June 30, 2014, the
petitioners submitted public comment and strongly objected to the placement of the Empire
Fellows in the non-competitive jurisdictional class. Thereafter, the petitioners requested that the
CSC reconsider its decision and place the Empire Fellows in the competitive class. On
September 18, 2014, the CSC gave the OGS request final approval. On May 19, 2015, the
Governor approved CSC Resolution No. 44of2014. A final Notice of Adoption was printed in
the State Register on June 3, 2015. An "Erratum" for comment by petitioners was printed on
June 24, 2015 .

The petitioners allege the respondents failed to comply with Article V 6 of the New
York Constitution and Civil Service Law 42(1) and 44 which requires competitive exams for
all state positions. The petitioners allege the Empire Fellowship Program barred all state,
legislative and executive employees from applying for acceptance to the program. The
respondents maintain existing employees were deprived of educational and professional
development, networking and advancement opportunities associated with the program. The
respondents claim the Executive Fellowship Program was geared toward young people and
excluded older and more experienced state employees. Petitioners also allege the respondents
failed to comply with the SAP A by not providing an assessment of public comment and reveal
the program was for a duration of twenty-four months. The petitioners allege the Empire
Fellowship Program denied equally educated and qualified State employees from participation
which had a negative impact on employee morale. In addition, the petitioners allege the Empire
Fellows were paid more than experienced employees working in the same state agency.
The judicial standard of review of administrative determinations pursuant to CPLR
Article 78 is whether the determination is arbitrary and capricious, and a reviewing court is
therefore restricted to an assessment of whether the action in question was taken "without sound
basis in reason and ... without regard to the facts." (Matter of Pell v. Board of Education, 34 NY
2d 222 [1974]). The test usually applied in deciding whether a determination is arbitrary and
capricious or an abuse of discretion is whether the determination has a rational or adequate basis.

(Matter of Peckham v. Calogero , 12 NY3d 424 [2009]). The reviewing court in a proceeding
pursuant to CPLR Article 78 _will not substitute its judgment for that of the agency unless it
clearly appears to be arbitrary, capricious or contrary to the law. (Paramount Communities, Inc.

v. Gibraltar Cas Co. , 90 NY2d 507 [1997]; Akpan v. Koch, 75 NY2d 561 [1990]).
"When the judgment of the agency involves factual evaluations in the area of the agency's
expertise and is supported by the record, such judgment must be accorded great weight and
judicial deference. " (Matter of Flacke v. Onondaga Landfill System, 69 NY2d 355 [1987]).
Moreover, in order to maintain the limited nature of review, it is incumbent upon the court to
defer to the agency' s construction of statutes and regulations that it administers as long as that
construction is not in-ational or unreasonable. (Lorillard Tobacco Co. v. Roth, 99 NY2d 316
[2003]).
The respondents maintain that at any given time, there are fewer that fifteen Empire
Fellows employed by the State. The respondents claim the Empire Fellowship Program is a full
time training program that will prepare the next generation of talented

profe~sionals

for careers as

New York State government policy makers. The enrolled fellows are assigned to various state
agencies and are assigned to participate in high-level projects that require flexibility to move
between different assignments. Respondents claim a competitive class job title would be difficult
to define. The respondents maintain it would be impracticable to create a competitive
examination to address the vast duties the fellows would be assigned to at various state agencies.
The respondents claim since this is a temporary program, the fellows are not competing with
career civil servants.
Article V 6 of the New York Constitution "favors competitive examination because it
provides, presumably, an objective and verifiable measurement of the candidates' merit".
(McGowan v. Burstein, 71 NY2d 729 [1988]). An "exemption is the exception and is
constitutionally pe1missible only when it is established that a competitive examination is not

practicable_;' (Byrnien v. New York State Dept. of Civil Service , 79 AD3d 1501 [3 rd Dept. 2010]).
Judicial deference should be given to the Civil Service Commission as it has a greater ability to
assess whether, to what extent, and in what manner merit and fitness should be measured by
competitive examinations. (McGowan v. Burstein, 71 NY2d at 733).
A job classification determination is subject to limited judicial review and will not be
disturbed absent a showing that it was wholly arbitrary or without a rational basis. (Cove v. Sise ,
71NY2d910 [1988]). In addition, ifthe classification determination has a rational basis in the
record, it will be upheld even if there exists legitimate grounds for a difference of opinion.

(Lavere v. Boone, 130 AD3d 1357 [3rd Dept. 2015); Matter a/Grossman v. Rankin, 43 NY2d 267
[ 1977]).
After a review of the record, the Court finds the decision of the Civil Service
Commission not to require a competitive examination for enrolles in the Empire Fellowship
Program had a rational basis and was _not arbitrary and capricious. The goal of the program was
to recruit recent college and university graduates for a career as future policy makers in New
York State government. This initiative was a temporary twenty-four month program and the Civil
Service Commission correctly determined that a competitive exam would be impractical. This
Court also finds the respondents substantially complied with the requirements of the Civil
Service Law and the State Administrative Procedure Act.
This Court must defer to the respondents ' interpretation of the statutes and regulations
they administer. (Roberts v. Tishman Speyer Properties, LP, 13 NY3d 270 [2009]) . The
determination of the respondents had a rational basis and as a result, the petition is denied.

ORDERED, the petition is denied.

This shall constitute the Decision, Order and Judgment of the Court. This Decision,
Order and Judgment is being returned to the attorneys for respondents. All original supporting
documentation is being filed with the Albany County Clerk 's Office. The signing of this
Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel are
not relieved from the applicable provisions of that rule relating to filing, entry, and notice of
entry.

SO ORDERED AND ADJUDGED.

ENTER.

Dated: August /b , 2016

Albany, New York

RICHARD J. MCNALLY, JR.

Supreme Court Justice

'

...

Papers Considered:
1.

Notice of Verified Petition dated September 9, 2015 ; Verified Petition, dated

September 8, 2015 with annexed exhibits A-U; Affidavit of John-David Wood
dated September 8, 2015 with annexed exhibits A & B; Memorandum of Law
dated September 10, 2015;

2.

Verified Answer dated November 20, 2015; Affidavit of Allen Jordan dated
November 19, 2015 with annexed exhibits A & B: Affidavit of Shirley LaPlante
dated November 19, 2015 with annexed exhibits A-E; Affidavit of Daniel J.
Cunningham dated November 20, 2015; Affidavit of Mark P. Pattison dated
November 20, 2015; Memorandum of Law dated November 20, 2015;

3.

Reply Memorandum of Law dated December 17, 2015.