39 N.Y.2d 641, Broidrick v. Lindsay

Citation:39 N.Y.2d 641, 385 N.Y.S.2d 265
Party Name:Broidrick v. Lindsay
Case Date:May 11, 1976
Court:New York Court of Appeals

Page 641

39 N.Y.2d 641

385 N.Y.S.2d 265

In the Matter of Thomas J. BROIDRICK, Jr., et al., as Trustees of the New York Building and Construction Industry Board of Urban Affairs Fund, et al., Respondents,


John V. LINDSAY, as Mayor of the City of New York, et al., Appellants.

New York Court of Appeals

May 11, 1976.

W. Bernard Richland, Corp. Counsel (Beverly Gross, New York City and L. Kevin Sheridan, New York City, of counsel), for appellants.

Robert G. Benisch, Walter M. Colleran and Robert J. Fink, New York City, for respondents.

BREITEL, Chief Judge.

The issue is whether the New York City Deputy Mayor-City Administrator has the power to mandate by regulation affirmative action, in the form of meeting prescribed minority percentages of employment, [385 N.Y.S.2d 266] by constructi contractors with the city. The question arises on appeal from determinations adverse to defendant city in an article 78 proceeding converted into an action for a declaratory judgment. The city appeals.

The order of the Appellate Division should be affirmed. The Deputy Mayor's regulations mandating affirmative action were in excess of existing authorizing legislation. To be sure, there is a strong public policy, expressed in both State and local law, against minority discrimination. While the Mayor or the Deputy Mayor may be empowered to require compliance with these laws by construction contractors, no State or local law authorized the city executive to mandate an affirmative action program containing minority hiring percentages. Hence, the regulations, if they otherwise complied with constitutional limitations, were invalid as in excess of the power of the city executive.

On April 2, 1968, the then Mayor issued Executive Order No. 71, which prohibited construction contractors doing business with the city from discriminating in their hiring practices because of race, creed, color, or national origin. The order further provided that the awarding of city contracts would be conditioned upon a bidder submitting an affirmative action program to insure that employees and applicants would be treated without regard to their race, creed, color, or national origin. The term 'affirmative action' was not defined in the order. The Deputy Mayor was given the power to issue rules and regulations to implement the order.

Thereafter, representatives of the city, the State, the contractors, and the labor unions entered into discussions to formulate a uniform plan to meet the affirmative action requirements of the Mayor's executive order and a similar Governor's executive order. Agreement was eventually reached on a plan, known as the 'New York Plan', for on-the-job training of minority group members and their referral for training to appropriate unions. Its purpose and effect, if successful, were to increase the pool of persons eligible for employment by including theretofore excluded members of certain minorities. The plan became effective on December 10, 1970.

Dissatisfied with the effectiveness of the plan, on January 18, 1973, the Mayor withdrew the city from participation. On July 5, 1973, the Deputy Mayor officially promulgated 'Rules, Regulations and Orders of the Deputy Mayor-City Administrator', purportedly pursuant to Executive Order No. 71. Briefly, the regulations provide that, as a precondition to an award of a construction contract with the city, a contractor must agree to make 'good faith' efforts to provide specified 'percentages' of 'minority man-hours' of work on each of the contractor's projects with the city or with others throughout the term of the city contract involved. According to the regulation this is not to be interpreted as requiring the use of 'quotas' in hiring. The regulations further require the contractor to effect 'programs by (building trades) unions or organizations to advance trainees...

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