What you need to know about job transfers


By HECTOR MILLAN The discussion of job transfers never


seems to stop at PEF. Over the years, PEF members have


routinely asked PEF to take a formal position against the practice of transferring state employees into positions where the person being transferred is not on an eligible list. In some cases, members argue these


transfers are, in fact, promotions when the transfers involve a step or two up in salary. The frustration is understandable,


especially when people have worked hard to get on eligible lists, only to be passed over by someone who’s not listed. This long debate continues, and it may


be helpful to review what PEF previously has attempted to do on this issue.


PEF convention resolution A resolution, introduced by Susan M.


Kent (before she was elected president of PEF), was passed at PEF’s 2005 convention, directing the union to “challenge in court the use of (civil service regulations)…that allow promotions in the guise of transfers and ... pursue passage of legislation to prevent transfers under both sections of the law except in those cases where the candidate is reachable on the appropriate civil service list.” At the time, both PEF’s Office of General


Counsel and Civil Service Enforcement Department pointed out, in a memo to the Executive Board and other PEF leaders, that the state “Department of Civil Service (DCS), the Civil Service Commission and the courts have consistently denied challenges to transfers…for positions that are up to two salary grades higher than the employee’s current position.” The state has determined transfers are proper when positions are in similar


specialties or have equivalent tests or qualifications.


Court challenge to transfers In 2005, a PEF member who was a


manager of data processing technical services at the DCS, challenged in court the transfer of another employee to the title of “chief” of data processing technical services (CDPTS). The PEF member who made the challenge told the court he was ranked first, with eight others, on a competitive examination list, and said the employee who was transferred into the position was not among the top 10 on the list. He also challenged two other appointments to CDPTS positions that also were made by transfers. The state Supreme Court found the


transferred employees were “qualified for voluntary transfers to the CDPTS positions by virtue of their periods of permanent competitive service in their transfer appropriate titles…and these appointments did not violate petitioner’s statutory or constitutional rights.” The court said the “Legislature has


determined competitive examinations are not practicable under certain circumstances, including situations where transfers are appropriate pursuant to Civil Service Law.” And state Civil Service Law, itself,


states, “Transfers shall be allowed between administrative positions in the same or collateral specialties which involve substantially equivalent tests or qualifications, subject to such conditions and limitations as the (state DCS) may prescribe.” The member lost his lawsuit in 2006.


He appealed the decision to the Court of Appeals, New York’s highest court, but it dismissed his appeal.


transfers is drawn largely fromthat available through the websites of the state Department of Civil Service (DCS) and its CareerMobility Office (CMO).


What are transfers? Atransfer is themovement of a


permanent competitive-class employee froma position in one title to a position in a different title, or froma position in one agency to a position in another agency. Both positionsmust be


within the competitive class. Transfers occur with the consent of the employee after


nomination by the appointing agency and the approval of the DCS. Approval by the agency fromwhich the employee is transferring is not required.


While PEF is also concerned about the


potential to abuse transfers, the courts have held repeatedly the DCS’ transfer policy does not violate the state’s Civil Service Law or its constitution.


Promotion exception If there is an exception, it would involve


a transfer that is actually a promotion. Civil Service regulation states, “A transfer may be made only if the position to which transfer is sought is the same, or substantially the same, or a lower salary level than the position from which it is sought.” Historically, the DCS defined “the same


or substantially the same” to be positions within two salary grades or one management salary grade of each other. Some PEF members have opposed this definition, but the courts have allowed it, deferring to the agency’s interpretations of its own regulations.


You can use it If there is a silver lining to the DCS


transfer policy, it is PEF members can take advantage of it. Employees must take the initiative by responding to agency vacancy postings, contacting agencies directly, or by looking for vacancies on the Governor’s Office of Employee Relations’ StateJobsNY.com website or the DCS website. One current example of such an


opportunity to transfer exists for PEF members at the state Department of Corrections and Community Supervision (DOCCS). Employees in the title of offender rehabilitation coordinator, SG-19, who wish to pursue their career in the parole officer field may be eligible for a transfer under state Civil Service Law section 70.1, into the parole officer, SG-21 title.


DCS, CMO information on transfers The following information about


transfer. Transfersmay not be approved if


amandatory re-employment list exists for the title to which a transfer is sought.


What’s required? Generally, employeesmust have


had at least one year of permanent service in their current title or at their current salary grade. The transfer may be to the same or lower salary grade, butmay not be to a titlemore than two salary grades (or one management grade) higher than their current title. Employees who are currently serving probation are eligible to


Page 12—The Communicator September 2014


Different kinds of transfers State Civil Service Law defines


three different kinds of transfers: 1) Section 70.1 allows transfer


without further examination fromone title to another when a sufficient degree of similarity exists between theminimumqualifications, tests and/or duties of the specific titles involved. The appropriateness of a transfer is decided on a title-by-title


basis at the request of the personnel offices of state agencies. This section of the law allows employees to transfer to another agency in the same title. 2) Section 70.4 allows transfer to


a title which is not similar, but where the employeemeets the qualifications for the title. Usually the employeemust pass an examination for the title that is open to the public before the transfer can be approved. 3) Section 52.6 allows transfer


between administrative titles at the same or similar salary grade. Administrative titles are those involving law, personnel, budgeting, methods and procedures,


PEF Information Line: 1-800-553-2445


CIVIL SERVICE


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