Albano v. Kirby

• Decision Date: 07 May 1975
• Citation: 369 N.Y.S.2d 655,330 N.E.2d 615,36 N.Y.2d 526
• Parties: , 330 N.E.2d 615 In the Matter of John J. ALBANO, Appellant, v. James E. KIRBY, as Commissioner of Suffolk County Department of Social Services, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 655

369 N.Y.S.2d 655

36 N.Y.2d 526, 330 N.E.2d 615

In the Matter of John J. ALBANO, Appellant, v. James E. KIRBY, as Commissioner of Suffolk County Department of Social Services, et al., Respondents.

Court of Appeals of New York.

May 7, 1975.

Frederick Fagelson, Bay Shore, for appellant.

George W. Percy, Jr., County Atty. (Patrick A. Sweeney, Northport, of counsel), for respondents.

COOKE, Judge.

We review here the discharge of a social services investigator at the end of his 16th week of service, following his appointment from a competitive civil service list for a probationary term of 26 weeks, under county civil service commission rules stipulating a probationary term for permanent appointments 'of not less than eight nor more than twenty-six weeks'. There is no dispute as to the pertinent facts.

Petitioner passed the examination of the Suffolk County Civil Service Commission for the position of investigator and started working in that capacity in said county's Department of Social Services on January 4, 1971. Shortly thereafter, he received a letter dated January 18, 1971 from the Director of Administrative Services of said department stating: 'You have been appointed as an Investigator from List #10--168 as of 1/18/71, subject to a probationary term of twenty-six (26) weeks.' On February 25, 1971, an 'Eight Week Evaluation' report, reviewing petitioner's functioning in the position and recommending that his probationary period be extended beyond the eight weeks, was submitted by a special investigator to the personnel director but it appears that petitioner was not informed of same. On May 7, 1971, his services were terminated without a hearing for the stated reason that he had failed to successfully complete his probationary period.

Rule XVII (subd. 1, pars. (a), (c)) of the Suffolk County Civil Service Rules, entitled 'Probationary Term,' provide in pertinent part:

'1. Probationary Term.

'(a) Except as herein otherwise provided, every permanent appointment from an open competitive list * * * shall be for a probationary term of not less than eight nor more than twenty-six weeks.

'(c) An appointment shall become permanent upon the completion of the minimum period of probation unless the probationer, prior to the completion of such service, is given written notice by the appointing officer by mailing same to petitioner at least two business days prior to completion of probationary term, that the probationary term will be continued. * * * If the probationary term is so continued, the appointment shall become permanent upon the retention of the probationer after his completion of the maximum period of service or upon earlier notice to the probationer at any time after the completion of the minimum period of service that his probationary term is successfully completed. If the conduct or the performance of the probationer is not satisfactory, his employment may be terminated at any time after his completion of the minimum period of service and on or before the completion of the maximum period of service.'

Appellant contends that said rule requires that there must be both a minimum period and a maximum period for a probationary appointment and that the appointing authority may not disregard the former and grant merely a single probationary appointment for the maximum period. Respondents, on the contrary, urge that the rule confers on the authority the discretionary power to make a probationary period for any specified time so long as it is at least 8 weeks and not more than 26.

Aside from the consideration of interdepartmental promotions, every original appointment to a position in the competitive class shall be for a probationary term and municipal civil service commissions, including those of a county (Civil Service Law, § 2, subd. 4, Consol. Laws, c. 7), shall provide by rule for the conditions and extent of probationary service (Civil Service Law, § 63). Such rules, properly adopted by such commissions, have the force and effect of law (Civil Service Law, § 20, subd. 2; Matter of Bates v. Lang, 26 A.D.2d 462, 468, 275 N.Y.S.2d 578, 584; Matter of O'Brien v. Lang, 18 A.D.2d 140, 143, 237 N.Y.S.2d 960, 963, affd. 13 N.Y.2d 688, 241 N.Y.S.2d 171, 191 N.E.2d 673) and are to be construed in the same manner as a statute (Carmody v. City of Mount Vernon, 3 App.Div. 347, 349, 38 N.Y.S.2d 314, 315; People ex rel. O'Hara v. Neville, 58 Misc. 279, 283, 109 N.Y.S. 640, 642).

In the construction of statutory provisions, the legislative intent is the great and controlling principle (Matter of Petterson v. Daystrom Corp., 17 N.Y.2d 32, 268 N.Y.S.2d 1, 215 N.E.2d 329), same being sought first in the words of the statute under consideration (Department of Welfare of City of New York v. Siebel, 6 N.Y.2d 536, 545, 190 N.Y.S.2d 683, 690, 161 N.E.2d 1, 6; Matter of Bowne v. S. W. Bowne Co., 221 N.Y. 28, 31, 116 N.E. 364, 365). The language in the rule under scrutiny employs the expressions 'minimum period of probation,' 'completion of minimum period of service', 'completion of maximum period of service' and, 'retention of the probationer after his completion of the maximum period of service (subd. 1, par. (c)), clearly indicating the distinct existence of both a minimum period and a maximum period for a probationary appointment. The terms minimum and maximum voice separate and opposite denotations, the former specifying the least time or quantity assignable and the latter the greatest (cf. State v. Moore, 21 N.J.Super. 419, 91 A.2d 342). When different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended (Waddell v. Elmendorf, 10 N.Y. 170, 177; Kurlander v. Incorporated Vil. of Hempstead, 31 Misc.2d 121, 124, 224 N.Y.S.2d 461, 465; Doyle v. Gordon, Sup., 158 N.Y.S.2d 248, 257; McKinney's Consol. Laws of N.Y., Book 1, Statutes, § 236, p. 403).

We are confronted with a question of interpretation, in paragraph (a) of subdivision 1 of the rule, by the singular use of 'a probationary term of not less than eight nor more than twenty-six weeks.' No rule of construction, however, permits the segregation of a few words from their context and from all the rest of the section or rule for purposes of construction (Wilson v. Israel, 227 N.Y. 423, 427, 125 N.E. 819, 820; People ex rel. Board of Supervisors of County of Rockland v. Travis, 184 App.Div. 730, 732, 172 N.Y.S. 520, 522, affd. 226 N.Y. 703, 123 N.E. 883), and the enacting body will be presumed to have inserted every provision for some useful purpose (Matter of Smathers, 309 N.Y. 487, 495, 131 N.E.2d 896, 900; Matter of Tonis v. Board of Regents of Univ. of State of New York, 295 N.Y. 286, 293, 67 N.E.2d 245, 248). To construe the rule in question by holding that said paragraph (a) permits a single probationary appointment for the longest period, 26 weeks, would render paragraph (c) of the same subdivision, providing for a minimum and maximum period, meaningless. Such a construction, resulting in the nullification of one part of the rule by another, is not permissible (Matter of Chase Nat. Bank v. Guardian Realties, 283 N.Y. 350, 361, 28 N.E.2d 868, 871; People v. Sheehy, 204 Misc. 281, 286, 123 N.Y.S.2d 720, 725; McKinney's Consol. Laws of N.Y., Book 1, Statutes, § 98, p. 223).

In analyzing a statute or rule, courts look to their spirit and purpose, and the objectives of the enactors must be kept in mind (Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335, 274 N.Y.S.2d 881, 884, 221 N.E.2d 546, 549). The Constitution mandates that appointments in the civil service of the State and all of its civil divisions shall be made according to merit and fitness, to be ascertained, as far as practicable by competitive examination (N.Y.Const., art. V, § 6). It was pointed out by the Court of Appeals, in 1898, that both Federal and State statutes embodied the principle of probationary trials as a means of determining the merit and fitness of candidates and that this method had been employed in the civil service of Great Britain since 1855 (People ex rel. Sweet v. Lyman, 157 N.Y. 368, 378, 52 N.E. 132, 135). Experience had demonstrated that occasionally a candidate, who had done well on a civil service examination and even one whose education and experience normally indicated the potential capacity to perform satisfactorily, was found wanting in the actual execution of duties of the position (Kaplan, The Law of Civil Service (1958), p. 182).

While the primary purpose of laws and rules calling for probationary terms is to secure efficient service, they also service to furnish the appointee with an opportunity to show his or her fitness and to provide a more acceptable and less embarrassing means of terminating the employment of an unsatisfactory appointee (People ex rel. Kastor v. Kearny, 164 N.Y. 64, 67, 58 N.E. 14, 15; People ex rel. Sweet v. Lyman, supra, 157 N.Y. pp. 380--381, 52 N.E. p. 136; Matter of Stewart v. Roberts, 172 Misc. 997, 998, 16 N.Y.S.2d 586, 587; People ex rel. Zieger v. Whitehead, 94 Misc. 360, 157 N.Y.S. 563; Kaplan, The Law of Civil Service (1958), p. 182). A similar statement has been made in respect to the purpose of rule XVII (subd. 1, par. (a)) of the Rules of the Suffolk County Civil Service Commission (Matter of Sanches v. Town of Brookhaven, Sup., 232 N.Y.S.2d 238, affd. 19 A.D.2d 864, 245 N.Y.S.2d 994).

The early probationary appointments were for a single definite time and, in People ex rel. Kastor v. Kearny, supra, 164 N.Y. p. 66, 58 N.E. p. 15, it was pointed...