Petitioner, Local 100, Transport Workers Union of Greater New York (Local 100), brought this Article 78 proceeding, seeking, among other things, to compel respondent City of New York Department of Citywide Administrative Services (DCAS) to reinstate the promotional examination for the position of station agent, within the New York City Transit Authority (Transit Authority), which had been scheduled to be held in April 2004.

Petitioner Local 100 represents the non-supervisory operational and maintenance employees of the Transit Authority. Respondent DCAS is a municipal civil service commission with the responsibility, among other things, for administration of New York City's (hereinafter, the City) municipal and agency employees, including the administration of examinations for the [*2]City's civil service titles ^[FN1].

Originally, at the request of the Transit Authority, DCAS had scheduled both an open-competitive and a promotional examination for the title of station agent, to be held in April 2004. The open-competitive examination was open to all members of the general public, who met the eligibility requirements set forth in the Notice of Examination. The promotional examination, however, was open only to certain categories of Transit Authority employees, including employees in labor class titles, known as the cleaner titles (the cleaners). Candidates who take a promotional examination have an advantage over candidates who take an open-competitive examination, as DCAS will use the list of eligible candidates who pass the promotional examination to fill positions, before any appointments are made from the list of eligible candidates who pass the open-competitive examination. In or about December 2003, DCAS made a determination to cancel the promotional examination. Consequently, the open-competitive examination was the only examination given for the position of station agent in April 2004. All members of the public who met the requisite eligibility criteria, including Transit Authority cleaners, were eligible to take the open-competitive examination.

In a decision and order dated October 11, 2005 and entered on December 29, 2005, this Court exercised its discretion, pursuant to CPLR 7804 (h), to refer this matter for a hearing before a Special Referee concerning certain disputed factual issues necessary to enable this Court to review the determination by DCAS to cancel the promotional examination for the station agent position. The disputed factual issues before the Special Referee included:

"(1) whether, in or after 2004, the Transit Authority continued its prior practice of having employees in the cleaner titles relieve station agents during comfort breaks'; and(2) whether, in or after 2004, the cleaners have had other training or work experience providing them with adequate preparation to perform the work of station agents"

This matter was heard before a Special Referee ^[FN2], who held two days of hearings, on April 11, 2006 and April 18, 2006, at which each party was represented by counsel and presented witnesses. Special Referee Leventhal issued a report, dated October 24, 2006, summarizing the testimony of the witnesses at the hearing and containing proposed findings of fact (see Affirmation of Daniel R. Bright, Esq., in Support of Petitioner's Motion [Bright Aff. in Support], Ex. 1 [Referee's Report]). Petitioner Local 100 moves, pursuant to CPLR 4403, to reject the Special Referee's Report and to grant the Article 78 petition to compel DCAS to reinstate the promotional examination for the station agent position. Respondent DCAS cross-moves, [*3]pursuant to CPLR 4403, to confirm the Special Referee's Report.

This Court adopts the findings of fact of the Special Referee, except to the extent they are modified herein.

Findings of Fact

1. Whether, in or after 2004, the Transit Authority continued its prior practice of having employees in the cleaner titles relieve station agents during "comfort breaks".

William Klimowicz, the Director of the DCAS Uniformed and Technical Examining Group, and who previously served as the supervisor of uniformed and Transit Authority examinations from in or about June 1999 until April 2004, testified on behalf of respondent DCAS (TR1 ^[FN3] at 164). DCAS functions as the "watch dog" for the civil service system within New York City, to assure that all positions within that system, including Transit Authority positions, are filled in accordance with the "merit and fitness" requirement in the New York State Constitution and the provisions of the Civil Service Law and regulations (TR2 ^[FN4] at 18-19). DCAS has, in the past, offered promotional examinations for the position of Transit Authority station agent open to cleaners, based on its determination that cleaners were in a collateral or related title (see Civil Service Law § 52 [1] and [14]; TR1 at 169). According to Mr. Klimowicz, although generally, eligibility for promotional examinations is limited to individuals whose positions are in a direct line of promotion to the position being tested, DCAS occasionally allows individuals in a collateral or related title to take a promotional examination (TR1 at 167). DCAS determines that a position is in a collateral or related title, for the purposes of a specific examination only, where there is a strong reason to believe that the duties and tasks performed by individuals in the collateral title provide preparation and/or training to perform the duties of the examination title (TR1 at 168-169).

In the case of examinations for Transit Authority positions, Mr. Klimowicz testified that he relied upon the Transit Authority examinations unit to perform certain functions to assist DCAS, including conducting analyses of the tasks performed by employees in various positions and the knowledge, skills and abilities required to perform these tasks, and drafting proposed examinations (TR2 at 40-42). In order to confirm that there was a job-related reason to allow employees in the cleaner titles to take the promotional examination for station agent scheduled for April 2004, Mr. Klimowicz contacted Michael Queirey, the Director of Personnel, Testing, Collection and Classification in the Transit Authority's Human Resources Division, to ask whether there was a connection between the cleaner and station agent positions, in order to justify the cleaners' collateral eligibility (TR1 at 177-178). According to Mr. Klimowicz, Mr. Queirey told him that, in the past, cleaners were permitted to relieve station agents during "comfort breaks" (TR1 at 178). Mr. Queirey indicated that he would confirm whether cleaners [*4]still provided "comfort break" relief. Mr. Klimowicz testified that Mr. Queirey called him back and told him that it was no longer Transit Authority policy to permit cleaners to relieve cleaners for "comfort breaks" (TR1 at 178).

Mr. Queirey testified that Mr. Klimowicz advised him that DCAS did not intend to offer a promotional examination for the station agent position without justification based upon job affinity between the station agent and cleaner positions (TR2 at 96-97). Mr. Queirey initially believed that there was job affinity between the two positions, as he was under the assumption that cleaners filled in for station agents during "comfort breaks" (TR2 at 98-99). Mr. Queirey described "comfort breaks" as "when station agents needed to take a break to go to the rest room or possibly even a lunch break, the cleaners will fill in for them in the performance of their duties" (TR2 at 100). Mr. Queirey further testified that he directed a member of his staff to confirm with the Transit Authority's Division of Stations whether the "comfort break" practice was still being followed. Mr. Queirey was surprised to learn, based upon a conversation between his staff member and David Sierra of the Division of Station Operations, that the Transit Authority had discontinued the practice of cleaners providing station agents with "comfort break" relief (TR2 at 98-101). At some point, Mr. Queirey told Mr. Klimowicz that cleaners no longer provided "comfort break" relief to station agents (TR2 at 101-102).

David Sierra, a General Superintendent in the Transit Authority's Division of Station Operations, testified that, at the end of 2003, the Transit Authority changed its prior policy of allowing cleaners to go inside the station agents' booths to provide "comfort break" relief (TR2 at 124). This change in Transit Authority policy and practice resulted from an agreement between representatives of Transit Authority management and the union (Local 100), in order to help curtail money shortages in the booths (id.). Mr. Sierra testified that, in 2004 and continuing until the present, when a station agent needs comfort relief, he or she would call a supervisor at the district office and get permission to take a 10-minute "comfort break". If there is a cleaner in the station, the cleaner will come to the "control area" outside the booth while the agent is on "comfort break", and give directions to the customers and direct them to purchase Metrocards at the automatic Metrocard Vending Machines (vending machines) (TR2 at 115-117). Mr. Sierra explained that, when the cleaners used to relieve station agents inside the booths during comfort breaks, they would sell tokens (TR2 at 118). Mr. Sierra noted, however, that in April 2004, the Transit Authority discontinued tokens in favor of the exclusive use of Metrocards, and the Transit Authority has not trained cleaners to encode Metrocards (id.). Mr. Sierra further testified that, at the end of 2003, a member of the Transit Authority's examinations group, under Mr. Queirey, asked him about the responsibilities of cleaners for providing "comfort breaks", and he stated that the cleaners would provide comfort relief by standing outside of the station agents' booths and giving directions to customers and directing them to use the vending machines (TR2 at 119-120).The correspondence between the Transit Authority and DCAS concerning the cancellation of the April 2004 promotional examination, however, does not mention the change in Transit Authority policy and practice curtailing the "comfort break" relief provided by cleaners. In a letter dated December 22, 2003, Kevin Hyland, the Transit Authority's Vice President for Human Resources, advised Joseph DeMarco, the Deputy Commissioner of DCAS, of the Transit Authority's position that there is sufficient "job affinity" between cleaners and station agents to justify continuing the promotional examination based upon collateral eligibility [*5](Fay Aff. in Support, Ex. A). This letter does not mention "comfort breaks", but, instead, focuses on the customer service functions of cleaners (id.). In his letter dated January 21, 2004, Mr. DeMarco responded to Mr. Hyland that, in the past, DCAS had considered cleaners to be eligible to take the promotional examination for station agent, as they were required to relieve station agents during "comfort breaks"(Fay Aff. in Support, Ex. A). In the course of the "comfort breaks", "a cleaner needed to be familiar with the basic operation of the equipment used by an agent and with some of the issues generally encountered by an agent", thereby providing a cleaner with "appropriate preparation" for the job of station agent, in order to justify collateral eligibility for promotion (id.). Mr. DeMarco's letter continued, "Unfortunately, once cleaners no longer relieved station agents, the basis for making cleaners eligible for the promotional exam was eliminated" (id.). Indeed, the Transit Authority never responded to Mr. DeMarco's letter, by clarifying, in writing, its new policy and practice regarding "comfort breaks". Mr. DeMarco's letter reflects the testimony of Mr. Klimowicz that, according to the information DCAS had received from the Transit Authority, in or after 2004, the Authority had discontinued its practice of having cleaners relieve station agents during "comfort breaks".

Petitioner introduced only three witnesses: Marvin Holland, a former Transit Authority cleaner who left this position in January 2004 to become a Local 100 representative; Jamel Chisholm, a station agent; and Kendra Hill, a station agent. Mr. Holland testified that cleaners still provided "comfort break" relief to station agents inside the booths in or after 2004 (TR1 at 8-10, 22). Mr. Holland, however, ceased to work as a cleaner in January 2004, at the very beginning of the time period at issue (id. at 9-10, 24). Ms. Chisholm testified that sometime in late 2004 or early 2005, she was told by a supervisor that cleaners were no longer permitted to go inside the booths to provide "comfort break" relief (TR1 at 116-117). On some occasions when she requested permission to take a comfort break, Mr. Chisholm was told by her supervisor to keep the booth locked, as no replacement could be found (id. at 125). Accordingly. Ms. Chisholm's testimony supported the position of DCAS. Ms. Hill testified that, when she was a station agent serving in a booth, up until March 2006, she would have cleaners relieve her during "comfort breaks' by providing limited service to customers and operating the security gate to admit customers with large packages and strollers (TR1 at 135-138). When she left the booth, however, Ms. Hill would disable the computer used to encode Metrocards, as cleaners were not trained to perform this function and were not supposed to do so (TR1 at 150-152). Ms. Hill also noted that cleaners are not permitted to relieve station agents for more than 15 minutes and, thus, if a station agent becomes ill, relief is provided by a relief station agent (id. at 144-145). In March 2006, Ms. Hill began her current position as a "station customer assistant", based in a burgundy booth, and her primary function is to stand outside the booth to direct customers and answer their questions (TR1 at 140-143). When she takes a "comfort break", she is no longer relieved by cleaners ^[FN5] (id. at 140).

The Special Referee found the testimony of the petitioner's witnesses to be credible. Nevertheless, the testimony of petitioner's witnesses concerned only their individual situations, or [*6]time periods not directly relevant to the issues in this matter, and cannot be generalized to apply to all of the employees in the Transit Authority system. Moreover, as noted above, the testimony of one of petitioner's witnesses, Ms. Chisholm, supported the position of DCAS.

According to the information that DCAS received from the Transit Authority at the time it made its determination to cancel the promotional examination for station agent scheduled for April 2004, the Transit Authority had discontinued its prior practice of having cleaners relieve station agent s during "comfort breaks". The testimony of Division of Stations General Superintendent David Sierra makes clear that, in or after 2004, the Transit Authority discontinued its prior practice of having employees in the cleaner titles relieve station agents during "comfort breaks", by going inside the station agents' booths and performing many of the agents' job functions. Instead, in or after 2004, the Transit Authority significantly curtailed the "comfort break" relief provided by cleaners, by having them stand outside the booths to provide directions to customers and to direct them to purchase Metrocards using the vending machines. Further, it has never been the policy and practice of the Transit Authority, either before or after 2004, to train the cleaners to encode Metrocards. Indeed, none of petitioner's witnesses testified that it was the systematic policy of the Transit Authority to train the cleaners to encode Metrocards.

2. Whether, in or after 2004, the cleaners have had other training or work experience providing them with adequate preparation to perform the work of station agents.

Mr. Klimowicz from DCAS testified that, when he asked Mr. Queirey of the Transit Authority whether there were any overlapping duties between cleaners and station agents, Mr. Queirey responded "no", except for the fact that cleaners occasionally answered questions from customers (TR1 at 178-179). Mr. Klimowicz further testified that when he asked whether there were any training programs to enable cleaners to learn the functions of station agents, Mr. Queirey responded that there was no formal training for cleaners to learn the primary duties of station agents (id. at 179). Mr. Klimowicz stated that he was not aware of any training program administered by the Transit Authority or Local 100 that trained cleaners to perform the tasks of station agents (TR2 at 17). He specifically noted that he was not aware of any program to train cleaners to encode Metrocards (id.).

Although Mr. Klimowicz acknowledged that cleaners did come in contact with customers during the performance of their duties, he stated that customer service functions, including answering passenger questions, were not the cleaners' primary duties (TR2 at 15). Mr. Klimowicz testified, based upon his discussions with the Transit Authority's examinations unit under the direction of Mr. Queirey, that it was his understanding that the cleaners performed customer service tasks on an occasional or incidental basis (TR2 at 15, 43-44). Mr. Klimowicz explained that, based upon his discussions with the Transit Authority's examinations unit, he understood that customer service functions constituted a very low percentage, under 10 to 15 percent, of a cleaner's job (id. at 43-44). Mr. Klimowicz summarized his criteria for determining whether to offer a promotional examination based upon collateral eligibility, as: (1) comparing the primary duties of each position; (2) comparing the time spent by employees in each position in performing specific duties; and (3) comparing the relative importance of each of the duties for the different positions (TR2 at 65-66). [*7]

Michael Queirey testified that his agency, the Transit Authority, responded to the request by Mr. Klimowicz of DCAS to explain the "job affinity" between cleaners and station agents in order to justify cleaners' collateral eligibility for promotion, in the December 22, 2003 letter by Kevin Hyland, the Transit Authority's Vice President for Human Relations, to DCAS Deputy Commissioner Joseph DeMarco (TR2 at 101-103). Mr. Queirey testified that he had no involvement with this letter (id. at 102). Mr. Hyland's letter advised DCAS that cleaners perform certain customer service functions, which he described as "(p)rioritizing information and interacting with customers", including answering passengers' questions for directions and information and working with other station personnel to distribute information to passengers during emergencies. Mr. Hyland explained that it is the Transit Authority's "belief that the customer service elements of the Cleaner job create a sufficient job affinity with the Station Agent title to justify continuing the collateral promotional opportunity" (Fay Aff. in Support, Ex. A).

In his January 21, 2004 letter responding to Mr. Hyland, Mr. DeMarco mentioned a "proposed training program" by the Transit Authority for cleaners, which he characterized as "a good first step toward justifying Cleaner eligibility for a Station Agent promotional exam" (Fay Aff. in Support, Ex. A). Mr. DeMarco's letter concluded:

"Once the program has been implemented and you have clearly described the training that will prepare cleaners for station agent jobs, we will be happy to evaluate it to determine whether we can consider Cleaner a collateral title. Specifically, we wish to review the section of the training curriculum that will be directly aimed at preparing cleaners to perform the duties and responsibilities of a station agent."

Mr. Queirey further testified that the training program Mr. DeMarco discussed in his letter is the "Transit certificate program", being developed by the Transit Authority and the union (Local 100) (TR2 at 104). The goal of this program is to train employees in lower level positions, including cleaners, to provide them with sufficient preparation for higher level positions in order to establish "job affinity" justifying their collateral eligibility for promotional opportunities (id. at 104-105). Mr. Queirey testified, however, that this training program is still being worked on and, thus, was not in existence in 2004, nor has it been implemented to date (id.). He further stated that he was not aware of any Transit Authority training programs in existence in 2004 intended to train cleaners for other positions, nor was he aware of any training offered by the Transit Authority to instruct cleaners how to encode Metrocards (id. at 105).

David Sierra, a General Superintendent in the Transit Authority's Division of Stations, described the differences between the duties of station cleaners and station agent. Station cleaners are responsible for cleaning of the stations, including the service booths occupied by the station agents (TR2 at 115, 135). Station agents, on the other hand, assist customers, by answering their questions and providing directions and travel information, report conditions within the stations and encode Metrocards using the computers inside their booths (id. at 116, 135). When asked about the customer service duties of cleaners, Mr. Sierra responded that all [*8]Transit Authority employees are supposed to answer questions from customers who, for example, are seeking directions within the station or travel information. If the employees are unable to answer the customers' questions, they are responsible for directing customers to persons who can do so (id. at 133-135).

Petitioner's witnesses testified concerning their duties while employed by the Transit Authority. Marvin Holland, who worked as a cleaner until January 2004, acknowledged that his primary function was to clean and maintain the stations (TR1 at 79-80). He testified, however, that he had a lot of other duties, including customer service functions like giving directions and crowd control (id. at 78-79). According to Mr. Holland, while he worked as a cleaner, customers would come to him to ask for directions or other questions "(a)lmost every five or ten minutes" (id. at 79-80). Petitioner's second witness, Jamel Chisholm, admitted that the Transit Authority has not trained cleaners to encode Metrocards. She testified, however, that she has taken it upon herself to informally train some cleaners to encode the farecards (TR1 at 122-124).

Kendra Hill, petitioner's final witness, testified that cleaners spend most of the day performing their primary function of cleaning stations, and are often responsible for several stations (TR1 at 141-142, 144-145, 159). She indicated, however, that cleaners also perform customer service functions, including giving directions, answering travel questions and opening the automatic gate to admit passengers with large packages and strollers (id. at 157). Respondent's attorney asked Ms. Hill to compare the amount of time that a station agent spends on customer service functions, with the amount of time a cleaner spends on such duties. Ms. Hill responded that, as a station agent, she spent her entire tour of duty on customer service functions, while she estimated that for every hour a cleaner spends in her station, during at least 15 or 20 minutes customers are asking him or her for directions or for other assistance (id. at 158). According to Ms. Hill, her primary duties as a station agent included assisting customers as needed, giving directions, encoding Metrocards, admitting passengers with large packages or strollers through a gate and distributing reduced fare tickets to senior citizens and disabled passengers (id. at 149).

As was noted above, the Special Referee found petitioner's witnesses to be credible. Their testimony, however, concerned their own individual experiences and could not be extrapolated to apply to the work performed by cleaners and station agents throughout the entire transit system. Petitioner's witnesses did not provide an accurate basis to determine the amount of time cleaners actually spent on customer service, as opposed to cleaning functions, in or after 2004, and the relative importance of the customer service functions for the cleaners. If anything, petitioner's witnesses provided support for the conclusion that cleaning and related functions were the primary and most important duties of employees in the cleaner titles. Accordingly, based upon the record, it is reasonable to conclude that, in or after 2004, the cleaners were not trained or provided with work experience, on a systematic basis, which would adequately prepare cleaners to perform the work of station agents.

Discussion

Civil Service Law § 52 provides the statutory framework for promotional examinations. Civil Service Law § 52 (1) provides, as follows:

"Filling vacancies by promotion. Except as provided in section fifty-one, vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from [*9]among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as determined by the state civil service department or municipal commission; except that where the state civil service department or a municipal commission determines that it is impracticable or against the public interest to limit eligibility for promotion to persons holding lower grade positions in direct line of promotion, such department or commission may extend eligibility for promotion to persons holding competitive class positions in lower grades which the department or commission determines to be in related or collateral lines of promotion, or in any comparable positions in any other unit or units of governmental service and may prescribe minimum training and experience qualifications for eligibility for such promotion."

Civil Service Law § 52 (1) establishes a preference for filling competitive class positions from lower level positions in the direct line of promotion, except where the municipal civil service commission, in this case DCAS, determines that it is impracticable or against the public interest to do so. Since the position of station agent is an entry-level position, there are no lower level positions in a direct line of promotion. In such an instance, DCAS may extend eligibility for promotion to individuals in competitive class positions which it "determines to be in related or collateral lines of promotion".

Civil Service Law § 52 (14) provides further discretion for DCAS to extend collateral promotional eligibility to employees within the City of New York or a public authority, like the Transit Authority. Civil Service Law § 52 (14) provides, as follows:

"Notwithstanding any other provision of law, in a city containing more than one county, the municipal civil service commission may, for titles designated by it, extend to employees in the service of a civil division or public authority under its jurisdiction who are holding a position in the non-competitive class or the labor class of such service the same opportunities as employees in the competitive class to take promotional examinations for which such non-competitive class or labor class service is determined by the municipal civil service commission to be appropriate preparation."

When reviewing the exercise of discretion by an administrative agency, such as the determination by DCAS to cancel the promotional examination for the position of station agent, "(t)he courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious'" (Matter of Pell v Board of Educ., 34 NY2d [*10]222, 231 [1974]). The Court of Appeals further explained: "The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified .... and whether the administrative action is without foundation in fact'" (id. [citation omitted]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (id.).

Courts defer to the discretion of the appropriate civil service commission, in this case DCAS, to determine the eligibility requirements for promotional examinations, including whether certain job titles are in "related or collateral lines", within the meaning of Civil Service § 52 (1), or provide "appropriate preparation" for another job title, within the meaning of Civil Service Law § 52 (14) (see Matter of Conlon v McCoy, 22 NY2d 356, 362-363 [1968] [Court of Appeals concludes, inter alia, that Administrative Board of State Judicial Conference did not act in an arbitrary or capricious manner in making a determination to extend eligibility to certain titles for the promotional examination for Assistant Court Clerk]). Courts will not substitute their judgment for that of a civil service commission regarding the eligibility requirements to take a promotional examination, if any fair argument can be made to sustain the commission's determination (see Matter of Wirzberger v Watson, 305 NY 507, 513 [1953]; see also Matter of Gallagher v City of New York, 307 AD2d 76, 81 [1st Dept 2003], lv denied 1 NY3d 503 [2003]; Matter of McGrath v Safir, 250 AD2d 479 [1st Dept 1998]).

Matter of Gallagher v City of New York (307 AD2d 76) involved the reverse situation of the instant case, as the court upheld the determination of DCAS and the Fire Department to allow certain Emergency Medical Service (EMS) employees to take a promotional examination for the position of firefighter, based upon work in a related title providing sufficient "job overlap" (id. at 82). The Appellate Division emphasized judicial deference to the role of DCAS in determining the most appropriate manner to measure the knowledge, skill and abilities required for civil service positions, as follows:

"...DCAS must determine the requisite knowledge, skill and ability required for a given civil service position, assess the most appropriate way to measure a candidate's relevant attributes, and, if appropriate, administer and grade a test by which those qualifications may be judged. Due to the complex and highly technical nature of these functions, courts have accorded considerable deference to the agency's ability to assess to what extent, and in what manner, merit and fitness should be measured..."

The Appellate Division concluded, "Although the responsibilities of firefighters and those in the EMT and paramedic titles are not identical, the finding of the Fire Department and DCAS that there is a sufficient overlap of responsibilities to determine that the titles are related is rational" (Matter of Gallagher v City of New York, 307 AD2d at 82). For example, in Gallagher, the notice of examination indicated that firefighters are required to assist in providing pre-hospital emergency medical care and medical assistance to injured or ill citizens and are also trained in emergency assistance techniques, some of the primary responsibilities of EMS employees (id.). EMS employees, who are currently employed by the Fire Department, are trained to use and operate emergency vehicles and emergency communications equipment used by firefighters and have experience with the incident command system (id.). EMS employees [*11]also operate and are trained as a quasi-military organization, similar to firefighting units (id.). Although the Appellate Division noted that EMS employees do not have direct experience in fighting fires, it concluded, "...given the due deference to which DCAS is entitled and the limited scope of judicial review available to us ...., that the determination of overlap in responsibility in the tasks performed by firefighters and EMS personnel" is rational and not arbitrary and capricious (id. at 83-85 [citation omitted]).

Finally, the Appellate Division summarized the reasons for the practice by DCAS of giving candidates who pass a promotional examination preference over those who pass an open competitive examination for the same position:

"...in those instances where an identical open competitive examination is given at the same time as a promotional examination, DCAS assembles a certified list of candidates from both lists for use by the hiring agency. DCAS historically includes the names of candidates from the promotional list before including names from the open competitive list, a practice based upon DCAS's understanding that this reflects the intent of the Civil Service Law and flows from the determination that eligibility to sit for a promotional examination denotes skills and experience that have enhanced the candidate's merit and fitness to warrant a preference over those who have not served in the eligible title."

In other cases, courts have upheld the discretion of a civil service commission in changing existing requirements for promotional examinations, if the commission's determination was supported by a fair argument and was not arbitrary and capricious. For example, in Matter of Wirzberger v Watson (305 NY 507), the Court of Appeals upheld the determination by the New York City municipal civil service commission to change its former policy and to limit eligibility for promotion to a position within the clerical service to employees in lower grades within the clerical service, and certain related positions, and to exclude from eligibility employees within the accounting service. The commission's decision to change the eligibility requirements resulted from complaints by agency heads of unsatisfactory work performance by certain employees who had received promotions without training and experience in lower grades of the same type of work (id. at 512). Similarly, other decisions have upheld the discretion of civil service commissions to change eligibility requirements for promotions (see e.g. Matter of McGrath v Safir, 250 AD2d 479 [upholding determination to increase the experience requirements for the promotional examination for police sergeant, based upon report by commission examining police corruption]; Matter of Hedeman v County of Dutchess, 234 AD2d 294, 295 [2d Dept 1996] [upholding discretion of county civil service commission to increase educational requirements for promotion to junior civil engineer position]; Matter of Hewlett v Evans, 82 AD2d 920 [2d Dept 1981], lv dismissed 56 NY2d 632 [1982] [upholding determination by the Office of Court Administration to extend eligibility for promotional examinations for Surrogate's Court clerk positions to collateral lines of positions in other courts, where the nature of the work experience provided sufficient qualification for similar Surrogate's Court work; courts will not interfere with the discretion of a civil service commission or similar agency to extend eligibility for promotion to related or collateral lines of positions, within the meaning of Civil Service Law § 52 [1], if that discretion is "fairly exercised"]). Significantly, [*12]petitioner has cited no decisions in which courts have declined to uphold the exercise of discretion by civil service commissions or similar administrative agencies to either extend or eliminate collateral eligibility for promotions.

In this case, the determination by DCAS to cancel the promotional examination for the position of station agent in 2004, and to decline to extend collateral eligibility to Transit Authority employees in the cleaner titles, was rational and not arbitrary and capricious. DCAS based its determination to cancel the promotional examination on information it had received from the Transit Authority that it had eliminated the practice of having cleaners relieve station agents during "comfort breaks", and that cleaners did not have adequate preparation or training to perform the duties of station agents. Furthermore, the Report of the Special Referee and the hearing transcript establishes that, in or after 2004, the Transit Authority had discontinued its prior practice of having cleaners relieve station agents during "comfort breaks', by going inside the booths, and performing many of the agents' job functions. The evidence shows that, instead, the Transit Authority substantially curtailed the duties performed by cleaners who provided relief during station agents' "comfort breaks", to standing outside of the booths and providing directions to customers and directing them to purchase Metrocards using the automated vending machines. Judicial deference must be accorded to the determination of DCAS that the general customer service duties performed by cleaners, including responding to passenger questions for directions and information, duties similar to those performed by the cleaners during the limited "comfort breaks", did not provide sufficient "job affinity" with the station agents to justify cleaners' collateral eligibility for promotion, notwithstanding the position taken by the Transit Authority (see Fay Aff. in Support, Ex. A [December 22, 2003 letter by Kevin Hyland and January 21, 2004 letter by Joseph DeMarco]; see also Matter of Conlon v McCoy, 22 NY2d at 362-363).

The Transit Authority and petitioner Local 100 failed to establish that cleaners spent a significant amount of time performing the primary and most important duties of station agents. Nor was there any evidence that, in or after 2004, cleaners had training to perform the primary duties of station agents. Indeed, the record established that the Transit Authority has not trained cleaners to encode Metrocards, one of the primary duties of station agents particularly when the Authority eliminated tokens in April 2004, and relied on Metrocards exclusively. Although the Transit Authority and Local 100 are in the process of developing a training program for employees in lower level positions, including cleaners, which might adequately train such workers for the station agent position, this program is currently not in existence. If such a training program had been implemented, it might have changed the outcome of this case. However, at this juncture, it cannot be said that the determination by DCAS that cleaners lacked the preparation and training for the position of station agent, which would have justified their collateral eligibility for promotion pursuant to Civil Service Law § 52 (1) and (14), lacked any rational basis or was arbitrary and capricious, given the record before the court (see Matter of Pell v Board of Educ., 34 NY2d at 231). This Court cannot substitute its judgment for that of a civil service commission regarding the eligibility requirements for a promotional examination, if, as in this case, any fair argument can be made for the commission's determination (see Matter of Wirzberger v Watson, 305 NY at 513). [*13]

Accordingly, it is

ORDERED that petitioner's motion to reject the report of the Special Referee, dated October 24, 2006, is denied and respondent's cross motion to confirm the Special Referee's report is granted, to the extent that the findings of fact are modified herein; and it is further

ADJUDGED that the petition is denied and the proceeding is dismissed, and the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that, within 30 days of entry, respondent shall serve upon petitioner a copy of this decision, order and judgment, together with notice of entry.

This constitutes the Decision, Order and Judgment of the Court.

Dated:ENTER:,

Doris Ling-Cohan, JSC

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