Publius.nyc

Thinking about at how New York City government works

Month: May 2021

PRIMUM EST FACIEMUS: ET OCCIDIT OMNEM SCRIPTOR ADVOCATORUM

May 18, 2021 /

            Look, we were the Chief Justice of the Supreme Court of the United States, we get it, but the City of New York has too many damn (not my first choice swear word) lawyers. The City’s Law Department has a thousand lawyers. You read that right. And each agency also has its own legal department. We would doubt that the City even knows how many attorneys it has filling attorney positions (and the position we occupied, was a managerial, non-legal, position, as we were frequently reminded by our legal colleagues). There are about 60,000 lawyers practicing today in New York City (it was much more pleasant when we started practicing in the 1760’s and there were only a couple of dozen of us. Even Aaron Burr, wasn’t that bad a guy). Let’s say there are 2,000 lawyers working for the City – that’s over 2% of the total number. And the City tends to lose. For example, the City paid out over $600 million in tort claims in 2019 alone. That’s a crazy number.

            There are and have been some tremendously talented, dedicated and productive attorneys working for the City. Len Koerner, who was, for many years, the City’s chief appellate lawyer, was the most effective legal advocate it has ever been our privilege to observe in court. Working without notes, Len’s command of the law (and ability to cite particular cases) and deft ability to respond to judicial questioning were remarkable. He admirably represented the City for decades. We have worked with attorneys with expertise in real estate, telecommunications, condemnation, zoning and housing law, for example, who are/were the top practitioners in their respective fields of expertise and who were deeply dedicated to public service. 

            But the culture of the Law Department is bizarrely dysfunctional and given the number of attorney positions and the City’s limited ability to compete in the market for legal talent, there are a lot of simply not very smart people practicing law in positions of responsibility for the City. While the Law Department and its chief, the Corporation Counsel, are, in theory, the City’s lawyers, the institution of the Law Department, has its own interests which often trump those of the City’s legal, financial and policy interests. But on legal issues facing city government is the last and final word. 

            City attorneys travel in packs. It is impossible to go to a meeting in City government where legal questions are at issue where fewer than two attorneys are present. Often there can be as many as ten. And City lawyers frequently complain that they are understaffed. If they sent half as many bodies to meetings and shortened the length of those meetings by half, they would quadruple their output. The large numbers of lawyers at big meetings are the result, in part, of the expertise within the City’s legal cadre being sliced razor thin, as well as no one’s being willing to defer or delegate to anyone else. City lawyers suffer from the worst case of FOMO (fear of missing out), we know of – and they were doing so decades before FOMO became a thing. We have been to meetings that included lawyers expert in administrative law, litigation, zoning and planning, the building code, the Board of Standards and Appeals, economic development and the fire code – from both agencies and the Law Department – at one meeting. Not only is this wasteful, but it is also counterproductive. 

            In our legal career we have never been in an environment where attorneys are so disrespectful of the expertise and experience of others. Position and seniority are provided deference, but not subject matter knowledge. We have been in large meetings at which we have been the only attorney with expertise in an area of commercial law (having actually had extensive experience in commercial transactions outside of government), where all in attendance, regardless of subject matter knowledge, have voiced their opinions – and all opinions have been equally regarded by senior decision makers. Often, the loudest voice, the biggest bully, carries the day. A kind of radical equalitarianism prevails. If you scraped by at “Solomon” Law School or clerked at the Supreme Court, your opinion carries equal weight. If you have dealt with the subject matter for decades, or you just graduated from law school – all get to have their say. Again, no matter who has what level of expertise and experience, the Law Department representative has the last word.

There is a lovely bit of idealistic equality here – but it doesn’t result in thoughtful legal decision making. In addition, City government is filled with graduates of law schools that are, shall we say, not that of Kings College, and who simply aren’t very skilled or very smart. That’s a harsh judgement, but we are the former Chief Justice of the Supreme Court of the United States, and we were privileged to study at Kings and read law with Benjamin Kissam – so we are, admittedly, a legal and educational snob. Notwithstanding our former high position, we have never in our career had our informed judgement so routinely ignored – and prior to City government we worked with and for some significant reprobates. 

            All decisions are group decisions. No one person has responsibility for legal decision- making on any issue. This is probably in order to prevent responsibility from affixing to any particular lawyer for a decision. Judgments both major and minor are the results of meetings to discuss the issue;  and there are often multiple meetings on any particular issue. This also does not result in quality thinking. It enables the last and loudest voice from the Law Department to carry the day. It protracts the process. We have been involved in City contract negotiations over a $500 million matter that went on for two years after a default. We were, at least on paper, the person most responsible for the subject matter – and yet we were only tangentially involved in the negotiations – which were conducted by agency General Counsel and the Counsel to the agency’s Commissioner (yes, the agency had both), supported by an agency attorney with subject matter expertise as well as litigation counsel from the Law Department. Yes, there was plenty of legal talent on the matter without need of my aid. After the deal had been cut, different Law Department attorneys with sovereignty of this particular bailiwick, and who admitted that they did not have the requisite financial expertise to understand the transaction, flyspecked the innumerable legal documents for months. The number of irrelevant issues raised by Law Department attorneys, and by other agency attorneys (without particular subject matter expertise) called in to add their wisdom, were both breathtaking and ridiculous. 

            Having practiced in the private sector and interacted with City government for decades, we came to learn that while the City builds layers upon layers of protective vehicles into its documents, accreted over decades of drafting and redrafting,  IT ALMOST NEVER EXERCICES ITS RIGHTS. When were first assigned to negotiate a contract with the City as a young lawyer, we engaged in trench warfare, negotiating line by line and word by word – as one would do in a multi-million dollar private sector transaction. After a couple of decades of experience, we learned that this was pointless. The goal in negotiating with City government is to get the contract signed and approved; and to GET THE CHECK. If the deal were to go south, you should be fully aware that the City is unlikely to assert its contractual rights. The City often demands substantial security in the form of letters of credit and performance bonds in its agreements, and its negotiating posture appears to revolve around the minimization of risk. But we have never heard of the City actually drawing on contract security. And facts on the ground are dispositive. Once a private party is in the system to get paid, has title to real estate or has its equipment in place, the City rarely reverses course. Once you are in, you are in for good – regardless of how badly behaved a counterparty you are. Smart businesspeople and attorneys with experience with New York City government are well aware of this (It’s also amazing, though, how many sophisticated people aren’t!).

            City attorneys spend an inordinate amount of time congratulating themselves on how excellent they are, how avaricious and incompetent private sector lawyers are, and how successful City lawyers have been in getting their way. First off, they are generally incorrect. Secondly, they often think this because they have been outsmarted. Third, the City does often get its way because of its enormous bargaining power (it is has a $100 billion annual operating budget and over three hundred thousand employees), not because of brilliant negotiating. And last, and most importantly, it doesn’t matter because the City doesn’t enforce the provisions of its agreements anyway, and when it attempts to do so in court it generally loses. 

            The most obnoxious practice in the Law Department is putting notes and questions in the margins of documents sent to them for review. Law Department attorneys put in the margin whatever comes to mind; important, unimportant, irrelevant, the result of gastro-intestinal distress, it all goes in there. Law Department attorneys never redraft or suggest language. They just comment. So, agency attorneys and professional managers have to guess at what their Law Department colleagues are looking for. You redraft, and they tell you in a marginal note, “No, that’s not exactly right,” and send it back to you for another round. This can go on for months. There is one widely revered very senior attorney at the Corporation Counsel, with decades of Law Department tenure, who has the last word on a wide range of financial transaction documents who i) never provides drafting, ii) can offer as few as one comment in a round of review, iii) can continue to provide comments for endless rounds and iv) has no sense of time or priorities. Stuff sits on his desk for months. But he is respected for his ability to find problems with documents. It is not his, or his colleagues, job to solve problems. They find problems; they issue spot like on law school exams.  When we were trained as an attorney, we learned that it is a lawyer’s job to solve problems. It is not clear to us whose interests the New York City Law Department is representing in pointing out, rather than solving, legal issues. Most of the issues they raise are so arcane as to not possibly protect any material interests of the City of New York. It’s a kind of academic exercise with the impact of bogging projects down for months and years. This has become a serious impediment to creative problem solving and new initiatives in City government. No one in authority puts a stop to this. Few City attorneys feels responsible for getting matters to closure. 

There might be some virtue in this course of dealing if the City’s contracts were so iron-clad that the City had a fearsome reputation for winning motions to dismiss in lawsuits (a motion that stops a lawsuit from proceeding shortly after a complaint commencing an action has been filed) – but the opposite is true. The City regularly gets bogged down in Jardyce v Jardyce like conflicts (except dealing with major economic and policy issues) that spend years in court without resolution. We were involved with the settlement of a six-year-old case filed by the City that was celebrated by colleagues and by press releases as a major win for City government, but, in our experienced estimation, was the best possible result for the interests of the City’s adversary in the litigation. They got exactly the result they were looking for when they breached their contract with the City years before.

STULTI FUERUNT OMNES NOS IN DIEBUS NOSTRIS

May 11, 2021 /

            The scandal plagued, $700 million Citytime system (https://www.nytimes.com/2012/03/15/nyregion/contractor-in-citytime-payroll-scandal-to-pay-record-500-million.html) was the bane of our work life existence. Conceived of during the administration of the former “America’s Mayor,” and completed during the term of the technocratic, billionaire Mayor, Citytime was an attempt to move the City from the pencil and paper keeping of time records of employees into the blazing efficiency of the mid 20th Century. The system was designed to maintain the employment records of over 300,000 workers in scores of agencies – from cops to accountants – all in the same system. Citytime is driven by a program design that every city worker should devote every precious minute of that employee’s seven-hour work doing the people’s business – and nothing else – whether walking a beat, teaching a class, inspecting buildings or sitting on one’s butt at a desk. Woe be to him or her found not to be rendering to the City the full measure of 35 hours a week (or, more accurately, given the way the system works, 70 hours every two weeks). Unfortunately for the programmers of Citytime, no one outside of an assembly line actually works that way.

            When we first joined the City’s employ, no one provided us with any training as to how to put our hours into Citytime. But, if we wanted to get that paycheck every two weeks (lagged by a week, in order to buy the City an extra week of float, to ensure that payment isn’t received for time not worked, and to make clear to City employees that the City didn’t give a fig about them as human beings from the outset), one had to make sure one entered one’s time into the system. Once logged in (a challenge in itself), on the initial screen in Citytime one sees fourteen boxes below the seven days of the week, where one is to enter one’s start and finish times. Non-managerial employees have stated work hours, to which they must adhere. Thank goodness, being on the bottom tier of managerial workers, we had some flexibility as to when our seven hours of daily toil might take place (with an hour or two of daily leeway). One checks a box to create fourteen more boxes into which one enters the beginning and end of one’s lunch period (mandatory for non-managerial employees). 

            The system seems to have dozens of toggles, most of which we have never used. It allows for the entry of the normally routine paid vacation and sick days – as well as many other permitted paid and unpaid uses of workdays (like jury duty). Two hours of leave time appeared in the system available for each COVID vaccine appointment (as we got our shots on the weekend, we used the time to go to a museum on a work day). The system made no accommodation for remote work – as until the pandemic, remote work was absolutely verboten for City workers (under the belief, we assume, that without City workers being on-site, in the office, they would be doing the heretical non-city work during city time). This made the system even more ridiculous for the 80,000 City office workers who were required to telecommute during the pandemic. We made do (and took quite a few naps).

            We struggled to deal with the system as a managerial employee, who was called on to work non-continuous nights and weekends – since other than for the lunch break, the system only recorded start and finish times. One was forced to provide inaccurate information. For example, if you ended your day at 5:30, and then spent from 8 to 11 on phone calls with the boss, you either put in 11 as the end of the day (even though you commuted and had some quality time with the dog sometime between 5:30 and 8) or you added the three hours onto 5:30 and entered that you ended the day at 8:30, which you actually didn’t do. We constantly wondered whether some timekeeping Gorgon was going to descend on us, dragging us to Citytime hell for gross malefactions in accurate timekeeping. 

            Our initial major run-in with Citytime occurred during our first long vacation from City employment. Being a responsible person, with (supposedly) managerial responsibility, we stayed in touch with the office while in Europe, spending as much as three hours on a couple of days on City business (much to dismay of Mrs. Publius) during a two-week trip. When we returned, we entered the daily time we spent on City work and recorded the rest of each day as vacation time (which was tracked within the system as hours accrued, rather than days. One earned so many hours of vacation and sick time for so many hours of paid work time). We submitted our data into the system and received back a flamer from the timekeeping Gorgons – “YOU CANNOT DO THAT.” It was then explained to me (for the first time after a year of employment) that the system requires each managerial employee to record seventy hours of work during each two-week pay period (allowing for some flexibility in hours among the two weeks). But equally importantly, one must record at least one hour of work in each day during the pay period. If less than seventy hours were recorded, the balance must be made up with leave time. If an hour a day was not recorded for every day during a five-day week, then the week must be taken as leave time. So, the system was designed to dis-incent working while on leave. In our previous experience in the private sector, while we generally were provided with four weeks paid vacation (the City provides new employees with two paid weeks, regardless of seniority), no one paid much attention to how much vacation time we took, because we were always available while out of the office, and often spent full days working during crises or major projects while at the beach. The City’s gargantuan system provided no means for such flexibility. It actually is designed to punish it. Maybe this makes sense for sanitation workers or police officers, but it is nonsense for senior managers. 

            Given the weaponization of infractions by jealous or disgruntled co-workers, and the Javert-like mind-set of the human resources Gorgons, it is important to toe the line and do it right. We were often receiving communications from HR that we had not followed the system correctly and were being docked for this or that. The system required doctors’ notes be provided for sick time (like in third grade). The system required one’s supervisor (or in my case, where our supervisor couldn’t be bothered with ministerial tasks, the supervisor’s designee) to check a box in the system next to one’s time record to approve it, in order for a paycheck to be issued. We were often chasing after our supervisor’s designee (a loathed colleague, who was both a bully and the very model of an inflexible bureaucrat) to beg them to approve our bi-weekly pay records. 

            Making matters more fraught, was the fact that we were rarely kept busy full-time while in the City’s employ. We would estimate that our job called for our complete attention for about three hours on most days. We had to find ways to fill the rest of our time that would make us appear to be busy – but not doing work that was proscribed. This included not only the writing of books or essays which might be published (we had a friend who was heavily fined for writing an op-ed for a newspaper on a City computer – for which he was paid $50. Of course a bureaucratic foe had ratted him out), but also non-profit board service or pro bono work of other kinds. Such work on City time was against the rules. So, we read The New Yorker and books (we tried to make them books at least tangentially related to our work. We did not read news websites or shop on-line during business hours, which appeared to be a major occupation of some of our equally underemployed colleagues). We also took long lunches. The truth can now be told: we almost never recorded a lunch break; first because we felt we were a slave to our iPhone at all times (both to phone calls and emails.) and because if we did, we would NEVER have been able to record 35 hours during many weeks. Because the time keeping system really seemed to prefer that time recorded as working hours be spent at our desks, we also spent many, many days staring at the clock at 5:30 or 6 PM (depending on when we arrived) in order to appear to be performing an actual seven-hour day. We were not presented with the alternative of ditches to dig (and perhaps fill back up) or assembly line widgets to produce when not otherwise occupied with the people’s business. 

            We do think we provided good value to the City for our work – but we suppose everyone does. We were effectively available to the City seven days a week, during all of our waking hours (the City iPhone lived on our nightstand). We brought to the City decades of relevant experience in a specialized, highly technical role. We were occasionally called upon to work late or on weekends. But we sat at our desk filling time for many unproductive hours without actual City work to do, as a slave to the inflexible (notwithstanding its many mysterious toggles) Citytime system. 

MALO PERICULOSAM, LIBERTATEM QUAM QUIETAM SERVITUTEM

May 9, 2021 /

            The City of New York is a remarkably humane employer in many ways. The workforce is diverse in just about every manner you can imagine. We had in our business unit Hispanic folks, Black folks, South Asian people, white people of Irish, Jewish, and South and Central Asian backgrounds. We had an Ivy League graduate, and a majority of people without college educations. There was an individual in the group with only a high school degree, who had a large amount of responsibility, a relatively high salary, and the capacity to draft sophisticated legal documents.

            We found that employees were genuinely caring about each other – particularly when there was family illness – people covered for each other and were very supportive. We celebrated births of grandchildren, birthdays and retirements. Sick days were generous. The City’s health benefits were comprehensive, the retirement benefits were generous – for people who stayed with the City for more than ten years, and particularly for individuals who started their careers in City government decades ago. There were also odd benefits that one had to do a little digging to find out about – like for glasses and for the deductibles under other policies. 

            But the idea floating around (particularly in the pages of Manhattan Institute publications) that City government is full of over compensated, richly benefitted timeservers is so just plain wrong as to be practically libelous. In our experience the unions for non-uniformed employees (and we are writing here entirely about non-uniformed City employees, and those who aren’t classroom teachers) were invisible and toothless. To us, the pension benefits were essentially useless, having come to City government mid-career. They are non-portable and unavailable to those with City government for less than ten years. For those who started their work with the City within the last 25 or thirty years, the pension benefits are far inferior to what they were decades ago. The pension benefits are tiered – and the more recently you became employed, the smaller the percentage of your final salary your defined benefits would be after retirement. There are defined contribution plans available, as in most of the private sector, to which the City does not contribute. 

            There are a wide range of protections for City workers ranging from union membership to civil service. The City has a vast range of identity derived protections and trainings, including from sexual harassment and racial discrimination. It appears to be difficult to fire people – we didn’t see it happen. We did see senior people sent to remote, satellite locations to do non-jobs when new senior management was appointed. Unfortunately, those employment discrimination programs, like the board set up to monitor conflicts of interests of City workers, are more often weaponized by employees against each other, than employed to remedy cases of mistreatment. That is, one employee who has a personal issue with another employee files an, often anonymous, complaint with the relevant investigative authority in order to cause problems for his or her unliked colleague. This unleashes an investigation which has to run its course in order to provide an appropriate process; interviewing the individual about whom the complaint was made, and perhaps their colleagues (damaging the subject of the investigation’s reputation, whatever the outcome) in order to establish the facts of the case. Even if there is no finding of wrongdoing on the part of the employee, a good deal of damage to that person can be done.

            And certainly, City government being a political entity, there are plenty of politics driving personnel decisions, and many managers who misuse their authority and treat their subordinates poorly. We encountered no monitoring of bad treatment of City workers by supervisors and no sanctions for abuse of authority – as long as the supervisor wasn’t using their subordinates to do non-city work or engaging in discrimination based on suspect classifications. Treating everyone equally abusively seemed to be OK. While much lip service is paid to best practices in management, there is little training, and almost no actual execution of those best practices. Our agency had an organizational development function made up of perfectly nice people, who didn’t appear to do very much – other than run the occasional employee awards program. And those awards programs tended to recognize longevity of service, rather than outstanding performance. 

            Also odd was that the human resources function of the agency was primarily an enforcement operation – making sure that employees conformed to rules regarding time keeping, vacations, sick days and such. The human resources staff absolutely refused to assist employees in navigating the complex array of benefits and options given to City workers when they are onboarded and during their tenure with the City. A huge information dump of pages and pages of small type text, often poorly copied material describing benefit options is provided to employees at the time of employment – with no one available to assist the employee in making choices. We assume this is to avoid being blamed for providing incorrect information or poor advice. 

            However, human resources staff are eagle-eyed in hunting down errors made by employees in their domain. They are quick to point out mistakes or incomplete information in complex forms. They will contact you when you have tried to access benefits to which you may not be entitled, or when you have taken too much time off, or not provided the proper documentation to justify paid time off. At one point in our tenure, we were docked a day’s pay for taking two mandatory furlough days (during the COVID pandemic) on Christmas week. In the memo announcing the (minimally) budget reducing mandatory five furlough days, it was stated that two days could not be taken in the same week. When we signed up for our furlough days early in the pandemic no one took the time to point that out to us.

We learned a great deal about City benefits literally around the office watercolor. We had a very intelligent colleague with over thirty years of City experience who was extremely helpful in advising us about how to make the most of City employee systems and benefits. Once around said cooler, we mentioned having just returned from having an eye-exam and buying glasses. She said to me, “You didn’t PAY for that did you?” It turned out that the City had an eye care program, that paid for the full cost of the glasses and exam that we hadn’t signed up for. In the same conversation, we learned about a dental program and an obscure program for non-union managers that paid for co-pays and deductibles of other health insurance plans (on the theory that union employees received free health insurance, with no deductibles and no co-pays, and managers should be effectively entitled to the same thing). No one made mention of these benefits when we joined the City, and if materials about these programs were provided to us, we missed them. When we asked for guidance from human resources staff, we were referred to the City’s complex website. 

Civil Service

            While civil service protection was originally created early in the 20th Century as a result of civic movements to reform city government to encourage merit-based hiring and promotion, and to protect employees from political or other arbitrary decisions regarding termination, those goals got lost in the mists of time generations ago. We can see no policy goals now being advanced by civil service other than to employ hundreds of people to design and administer tests that measure nothing of use. The tenure protections seem to keep in their jobs the most belligerent employees and the lowest performers. It is civil service protection that makes motivating and managing underperforming employees difficult to impossible.

            In addition, civil service is an obscure, insiders’ game. While there is a (very well written and interesting) weekly newspaper covering civil service, and a complex series of websites providing information on when exams are given and how they work (https://www1.nyc.gov/site/dcas/employment/take-an-exam.page), only insiders seem to know about them and how to navigate them. Civil servants throughout the bureaucracy seem to be members of clans with other members of their clan who work in city government. Knowing which tests to take for which positions is far from obvious (https://www1.nyc.gov/site/dcas/employment/open-competitive-exam-notice-archive.page). And, once an individual has taken and performed well on a test, using that performance to actually secure a job can take years, and is also labyrinthian. Without a person experienced with the system to advise you, it is nearly impossible to negotiate it effectively. Of course, there is no one either at the City’s centralized personnel agency, the Department of Citywide Administrative Services (DCAS), or within the many agencies, who can or will advise you. You are entirely on your own to figure out how the system works. It is difficult for me to imagine any graduate of a top college or graduate school learning how to access the system, and then using it to secure a position with city government. The system as a result of its obscurity and complexity discourages outsiders for taking advantage of it. I also suspect that most job seekers need a job in the present, and don’t have the resources to wait the years it generally takes to secure a job through the civil service system.

            And what do the tests, test? Beats the merda out of us, actually! Although we were hired as a “provisional” employee, outside of the civil service system (and one can be “provisional” for one’s entire career, and remain outside of the system – something the gorgons of the system actively work to prevent), we took three exams in order to see what it is was like. City jobs have both a civil service title and a “business” title. The civil service title establishes which competitive test one has to take to be eligible for civil service protection in that position. The business title is the one that goes on your business card – but it has nothing to do with anything relating to compensation and tenure. The compensation for any position is related to its civil service title.

One exam, we took, for the highest level positions, administrative business promotion coordinator (https://www1.nyc.gov/assets/dcas/downloads/pdf/noes/20200128000.pdf), was taken entirely on-line, and consisted of in-putting your resume into an on-line form, which would then be scored by some poor soul at DCAS for how well your square peg fits into the square hole. Note also that tests are given irregularly and periodically, some as infrequently as one a decade. Which makes it difficult to gain access to some civil service titles. It is generally impossible from the civil service titles for administrative jobs to determine what jobs the test is actually for. Most are pretty specific though. We aspire to take the examination for ferry boat captain. Seems like a cool job – and pretty straightforward as to what the test is for.

 Notable also is that many tests have “selective certifications” associated with them. Qualifying for the selective certification, moves one to the head of the civil service list for certain positions. In our case, our agency had created a certification which was crafted to match our expertise and experience, making it a near certainty that once we had passed this examination and been placed on the requisite civil service list, and once a civil service position matching the title associated with the test became open at our agency (entirely different from an opening for the business title, for which we had already been hired), we would be a lay-up for the position. All of those various conditions could, and generally do, take years. 

Most tests, however, require going to a test center, and entering answers to questions into a computer. The contents of the tests are closely guarded, and one is not supposed to be able to prepare for civil service examinations. You aren’t supposed to know what is going to be on the test, although the unions provide materials to members regarding test preparation, and there is a company that advertises in the civil service newspaper (The Chief-Leader) that sells practice tests. At the first actual test we took, the union for people in that title handed out calculators (that performed only the DCAS permitted functions) to those waiting on-line for the test. 

The tests we took were for administrative staff analyst (https://www1.nyc.gov/assets/dcas/downloads/pdf/noes/201909058000.pdf) and associate staff analyst (https://www1.nyc.gov/assets/dcas/downloads/pdf/noes/201909061000.pdf). What those jobs do, and which one is more senior to the other, we can’t recall. What I do remember is that the exam for the lower level title was more difficult. In each case we reported to a DCAS testing center to sit for the exam. We were allowed pencils and a simple calculator. We were not permitted water or snacks. The tests were four hours long. The first test I took was in the middle of the winter. We arrived at the test site a half hour early. We stood on various lines in over-heated hallways for over an hour after the announced time for the test to begin. Eventually, after proving our identity and demonstrating that we had properly registered for the test and had paid the requisite (non-refundable) fees, we were seated at a desk with a computer, and panels on either side, to take the test. The four-hour, multiple choice, test was strictly timed, and it was after 7PM and dark when we completed the test. If one needed to pee, the time came out of your four hours. 

We were already exhausted from the long period of hall standing before the test and were totally wasted when we completed the test. We were given a “provisional” score when exiting the test center. We barely passed. We have eight years of higher education, including in law, statistics, finance and general management. We barely passed. What in God’s name were they testing for? We couldn’t tell you. The questions on both tests seems entirely unrelated to any job in city government we might think of. None of them involved functions we had ever performed in decades of work, including in senior management in very large organizations. Some of the questions had to do with performing statistical analysis involving long strings of numbers, and much work with scratch pad and calculator. Some had to do with highly qualitative personnel decisions. We suspect we got most of the mathematical questions right (which we had the opportunity to check over carefully) and some of the more qualitative decisions (which called for guessing what the conventional wisdom about the decision was). But the exam clearly tested nothing that had to do with any real job in City government. So what was the point? Testing endurance?

Making matters more arbitrary and capricious, after many years we have not received the final results of ANY of the examinations we paid for (and paying for the tests seems like a big deal to DCAS, given what is written in its materials) and took. In the case of the resume-based exam, this likely has to do with DCAS’ not getting around to scoring it – despite the fact that during the pandemic we can’t imagine what else the DCAS staff had to do. The two multiple choice tests are likely the subject to an extensive process of challenges to the answers. Test takers have the right to challenge answers they got wrong, and to argue that the response deemed “correct” by DCAS, was actually incorrect. This is essentially a complex appellate process within DCAS. At the conclusion of the multiple-choice tests, we were given extensive materials explaining this appellate process, and invited us to sessions where the answers would be provided and explained, giving the test taker with an opportunity to evaluate and challenge the “correct” answers. So, we continue to sit and wait. We are certain we will have left government service before there is any chance that we will become eligible for civil service protection. 

What civil service would have provided to me in my senior management position would be job security. While we could be removed from our position, another job would have to be found for us, for which the highest level test we passed qualified us. Likely, such a job would offer a lower salary, but we would be guaranteed that income, and the accompanying benefits, for life – as long as we didn’t do something that clearly violated the rules.

Once a test is scored, a list is created of successful test takers in order of their scores. When positions become open in the appropriate civil service title, agencies are provided with the names of the top three scoring individuals from the list to interview for the open position. The agency is able to hire for those positions only from the civil service list. Once a candidate is selected for a position, they must successfully complete a one-year provisional period before they obtain civil service protection.

 Tests appear erratically. It takes years for the tests to be scored. It takes years for the civil service lists to be created. It may take years for a person’s name to advance on a list to the point where they are considered for an agency position, and then the person must wait a year before gaining civil service status. Franz Kafka could not have devised a more dysfunctional, useless system. The tests evaluate irrelevant knowledge and skills and the process takes years. What highly trained, experienced person would subject themselves to such a hiring process? 

As a result, we have come to the conclusion that process is useless. It does not attract and retain top talent for the City. It does not protect highly skilled, mobile employees from arbitrary treatment. The system makes it nearly impossible to manage low performing long-serving staff. It simply rewards patience and longevity for those who don’t have alternative employment opportunities. We are not sure what useful purpose it serves. That being said, as noted at the beginning of this chapter, almost all of our colleagues in the business unit that we managed were dedicated and highly skilled. So, there must be something to it. But it also protects the two or three out of those thirty who are gaming the system, low performing, belligerent or clueless. 

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