Adler v. Lang

• Decision Date: 21 April 1964
• Citation: 21 A.D.2d 107,248 N.Y.S.2d 549
• Parties: Application of Martin J. ADLER, Petitioner, for an order pursuant to Article 78 of the Civil Practice Act v. Theodore H. LANG, Anthony M. Mauriello and George Gregory, Jr., as Commissioners of the Civil Service Commission of the City of New York, Respondents, reviewing a determination of said Commission which denied an appeal from a determination of the Personnel Director of the City of New York which marked the petitioner not qualified for the position of Assistant Mechanical Engineer.
• Court: New York Supreme Court — Appellate Division

Page 549

248 N.Y.S.2d 549

21 A.D.2d 107

Application of Martin J. ADLER, Petitioner, for an order pursuant to Article 78 of the Civil Practice Act v. Theodore H. LANG, Anthony M. Mauriello and George Gregory Jr., as Commissioners of the Civil Service Commission of the City of New York, Respondents, reviewing a determination of said Commission which denied an appeal from a determination of the Personnel Director of the City of New York which marked the petitioner not qualified for the position of Assistant Mechanical Engineer.

Supreme Court, Appellate Division, First Department.

April 21, 1964.

Robert J. Mozer, New York City, of counsel (Harold, Luca, Persky & Mozer, New York City, attorneys), for petitioner.

George H. P. Dwight, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief, Leo A. Larkin, Corp. Counsel, attorney), for respondents.

Before BOTEIN, P. J., and BREITEL, VALENTE, EAGER and STEUER, JJ.

VALENTE, Justice.

This is an Article 78 proceeding which was transferred to this Court pursuant to CPLR § 7804(g). Petitioner seeks to review a determination of the Civil Service Commission of the City of New York (Commission) denying his appeal from the determination of the Personnel Director of the City of New York which marked him 'not qualified' for the position of Assistant Mechanical Engineer because of his 'arrest record'.

After petitioner had passed a competitive examination for the position of Assistant Mechanical Engineer, he was, on June 27, 1962, appointed to such a position for a probationary period subject to investigation. Before that probationary period had expired, petitioner was marked 'not qualified' by the Personnel Director on January 24, 1963. Pursuant to Section 50 of the Civil Service Law and Rule IV, Section III, Part 4.3.5(a) and (b) of the Rules and Regulations of the New York City Civil Service Commission, petitioner appealed to the Commission. After conducting what purported to be a hearing on February 27, 1963, the Commission affirmed the action of the Personnel Director. The notification of affirmance, dated February 28, 1963, merely stated that the appeal on the disqualification had been denied.

Petitioner was marked disqualified by the Personnel Director because of his 'arrest record'. That 'arrest record' appears in an Investigation Report submitted by the Director of Investigations of the Bureau of Administrative Services of the Department of Personnel. It sets forth an adjudication as a Wayward Minor in November, 1950 upon a charge of burglary and possession of burglar's tools upon which petitioner was placed on probation. The other arrest arose out of a charge in April, 1953, accusing petitioner in concert with another of abduction and related crimes. The abduction charge was dismissed and the petitioner pleaded guilty to assault, third degree, and was given a suspended sentence of one year in the penitentiary.

The blanket approval of the disqualification by the Commission does not give the basis of their denial of the appeal. It may not therefore be assumed that the entire 'arrest record' was not considered in reaching that conclusion, although it is argued by respondents, in this Court, that the Commissioners were concerned primarily, if not solely, with the assault conviction and that there is no indication that petitioner's wayward minor adjudication was relied upon or that any unfavorable inference was drawn from it.

In our opinion, this matter must be remanded for a new hearing. Initially, we cannot accede to the assumption that the wayward minor adjudication was not considered by the Commissioners in arriving at their determination. Petitioner was found 'not qualified' by virtue of his 'arrest record', which included the wayward minor adjudication. The affirmance by the Commission was in general terms of approval. As in the cases of a general verdict of a jury, a court may not guess upon what ground, to the exclusion of others submitted to the jury, a verdict was reached, in the absence of a special verdict.

Clearly, however, the statutes of this State prohibit the use of an adjudication as a wayward minor to 'operate as a disqualification of any such person subsequently to hold public office, public employment, or as a forfeiture of any right or privilege or to receive any license granted by public authority * * *'. (§ 913-dd, Code of Criminal Procedure). A similar rule applies as to adjudications of youthful offenders (section 913-n, Code of Criminal Procedure). So, too, in section 45 of the old Children's Court Act and section 84 of the Domestic Relations Court Act, there were prohibitions against the use of adjudications in the Children's Courts in connection with disqualifying a person from holding public office. The new Family Court Act, which supplanted the Children's Court Act and the Domestic Relations Court Act, also provides, in section 782, that any adjudication under that article shall not operate as a forfeiture of any right or privilege or disqualify any person from subsequently holding public office.

The policy behind those provisions is clear and unmistakable, viz., to avoid the perpetual stigma of conviction as to persons who in early life have run afoul of the law. In cases of offenses by juveniles, there was to be a type of amnesty by oblivion. In Matter of Anonymous v. New York City Transit Authority, 4 A.D.2d 953, 167 N.Y.S.2d 715, aff'd 7 N.Y.2d 769, 194 N.Y.S.2d 39, 163 N.E.2d 144, the Court in the Second Department said:

'* * * section 913-dd of the Code of Criminal Procedure expressly prescribes that a person who has been adjudged a wayward minor shall not thereby be disqualified from holding public office or employment. In effect, this statute, for the purpose of determining fitness and eligibility for public office or employment, obliterates the transgressions which gave rise to the adjudication. Respondent is entitled to all the protection which the statute affords. For the appellant now to draw any inference adverse to the respondent's character by reason of his derelictions when a minor is to deny to respondent the protection of the statute, to ignore its beneficent purpose and to violate the fundamental public policy which it so clearly manifests.' See also Sutton v. New York City Transit Authority, Sup., 150 N.Y.S.2d 207.

Since, as already demonstrated, we cannot say on the basis of the record before us, to what extent, if any, petitioner's adjudication as a wayward minor was improperly considered by the Personnel Director and the Commission in determining that petitioner was 'not qualified', there must be a remand, at least, for clarification on that matter. ¹

Before tackling the question of the adequacy of the hearing on petitioner's appeal to the Commission, we must first dispose of respondents' contention that there was no statutory requirement for a hearing and that the Commission merely voluntarily afforded petitioner a hearing under its rules. Section 50(4)(d) of the Civil Service Law provides that the state civil service department and municipal commissions may refuse after examination to certify an eligible who has been guilty of a crime or of infamous or notoriously disgraceful conduct. That section also provides:

'No person shall be disqualified pursuant to this subdivision unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.'

Admittedly those provisions do not mandate a statutory disqualification hearing. However, section 20 of the Civil Service Law, makes provision for the adoption of rules by municipal civil service commissions to effect the provisions of the Civil Service Law and of section Six of Article Five of the Constitution of the State of New York. Subdivision 2 of section 20, prescribes the procedure for the adoption of such rules and directs that such rules, when adopted, 'shall have the force and effect of law'.

Pursuant to section 20, the New York City Civil Service Commission adopted a rule (Rule IV, Section III, par. 4.3.5) which provides that the Commission 'shall also afford such appellant a hearing with representation by counsel,' when dealing with the disqualification of an applicant or eligible. Such a rule is not inconsistent with nor does it contravene, the provisions of section 50(4) affording an eligible 'an opportunity to make an explanation and to submit facts in opposition to such disqualification'. Consequently, as provided for in section 20 of the Civil Service Law, Rule IV, Section III, of the Municipal Civil Service Commission's Rules and Regulations has the force and effect of law. (Matter of O'Brien v. Lang, 18 A.D.2d 140, 143, 237 N.Y.S.2d 960, affd. 13 N.Y.2d 688, 241 N.Y.S.2d 171, 191 N.E.2d 673; Matter of O'Brien v. Delaney, 255 App.Div. 385, 387, 7 N.Y.S.2d 596, affd. 280 N.Y. 697, 21 N.E.2d 202; Cuzzivoglio v. Hamlin, Sup., 202 N.Y.S.2d 402, 403, affd. 13 A.D.2d 614, 214 N.Y.S.2d 670, app. denied, 13 A.D.2d 899, 217 N.Y.S.2d 591; see also Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 285, 75 S.Ct. 746, 99 L.Ed. 1074.) In fact, in recognition of its rule, the Commission did purport to hold a hearing on the question of petitioner's disqualification, as shown by the transcript of the proceeding before the Commission on February 27, 1963, in the record before this Court.

A hearing required by a rule, which has the force and effect of law, is equivalent to one mandated by statute. The right to a hearing carried with it a right to a meaningful hearing in which petitioner would be given an opportunity to submit proof and support his contentions by argument.

Respondents argue that the Commission's determination can be supported by petitioner's assault conviction in 1953 since section 50(4)(d) of the Civil Service Law permits disqualification of one who has been guilty of a crime. However, the...