Amico v. Erie County Legislature

• Decision Date: 20 May 1971
• Citation: 36 A.D.2d 415,321 N.Y.S.2d 134
• Parties: Michael A. AMICO, Respondent, v. The ERIE COUNTY LEGISLATURE, B. John Tutuska, County Executive of Erie County, and Donald M. Neff, Personnel Commissioner of Erie County, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 134

321 N.Y.S.2d 134

36 A.D.2d 415

Michael A. AMICO, Respondent, v. The ERIE COUNTY LEGISLATURE, B. John Tutuska, County

Executive of Erie County, and Donald M. Neff,

Personnel Commissioner of Erie County, Appellants.

Supreme Court, Appellate Division, Fourth Department.

May 20, 1971.

[36 A.D.2d 416] Robert E. Casey, Jr., Buffalo, for appellants (Justyn E. Miller, Buffalo, of counsel).

Walsh & Schnorr, Buffalo, for respondent (John B. Walsh, Buffalo, of counsel).

Before DEL VECCHIO, J.P., and MARSH, WITMER, GABRIELLI and CARDAMONE, JJ.

OPINION

MARSH, Justice.

In November, 1967, B. John Tutuska, then the Sheriff of Erie County, requested the Commissioner of Personnel of Erie County to take steps to place the criminal division personnel of the Sheriff's Department under competitive civil service. Subsequently, Sheriff Tutuska sent a letter to the Board of Supervisors of Erie County, predecessor of the County Legislature, informing them of the communication to the Commissioner of Personnel and requesting that further studies be made along the lines suggested by the Sheriff to carry out the implementation of civil service status for the law enforcement division of the Sheriff's Department. The matter was taken under advisement by the Public Safety Committee and, on October 7, 1969, the Erie County Legislature adopted a resolution requesting the County Attorney to investigate the possibility and method of securing civil service status for criminal division deputy sheriffs. The County Attorney prepared proposed Local Law No. 2, 1969, (Local Laws, 1969, No. 2 of County of Erie), which was then adopted by the Erie County Legislature on October 21, 1969, and, after a public hearing, was signed into law on November 25, 1969, by B. John Tutuska, who was then County Executive.

Local Law No. 2, 1969 provides as follows:

'Section 1. The Erie county charter is hereby amended by adding thereto a new section, to be section fifteen hundred three to read as follows:

Sec. 1503. Deputies and employees. All deputies and employees of the sheriff of Erie county except the undersheriff, the secretary to the sheriff, and his civil deputies, are hereby placed in the competitive classified service and shall be hired by competitive examinations under the provisions of the Civil Service Law of the state of New York, and such deputies and employees shall be subject to and governed and controlled by the rules and regulations of the New York State Department of Civil Service.

Sec. 2. Notwithstanding the provisions of the foregoing, however, all employees of the sheriff, except the undersheriff, the secretary to the sheriff and his civil deputies, who have served for one year in their respective positions prior to the effective date of this local law, shall be covered in their respective positions without examination.

Sec. 3. This local law shall become effective immediately.'

In effect the law places all criminal division deputies of the Sheriff's Department in the competitive class of civil service as well as all criminal division employees in their respective positions without examination who have served for one year prior to the enactment of the law.

An examination of the organization of the Sheriff's Department of Erie County is necessary to demonstrate the impact of the law. County Executive Tutuska was Sheriff from September 1, 1959 to November 30, 1968. In his affidavit, he stated that it was the practice in the department to deputize all employees of the department regardless of what position they filled and to assign specific duties to certain deputies and restrict them to those duties. Since at least 1956, deputies were recruited for specific positions in the department, and, upon being sworn in, were trained to fill the specified positions. At all times deputy sheriffs were ordered to exercise their powers only to carry out duties specifically assigned to them, and deputies were never employed other than in the position for which they were recruited and hired. As of November, 1967, that definition of specific duties within the Sheriff's Department and the assignment of personnel to such duties on an unchanged and continuing basis had become so standarized that Tutuska informed the Commissioner of Personnel and the County Legislature of his desire to carry out the implementation of civil service status for the law enforcement division of the Sheriff's Department. Thomas W. Ryan, who was Sheriff from December 5, 1968 to December 31, 1969, stated in his affidavit that at all times civil division deputies were restricted to the execution of civil processes and that criminal division deputies were restricted to criminal duties. There was a departmental rule that criminal division deputies were not to perform any function of the civil division of the department. The Commissioner of Personnel of Erie County stated in his affidavit that prior to receiving the communication from Sheriff Tutuska in November, 1967, he had classified the positions in the Sheriff's Department under Appendix E (exempt) since he was under the impression that all deputy sheriffs had both civil and criminal duties and were, therefore, not under the jurisdiction of civil service. After the enactment of Local Law No. 2 he examined in detail the duties of every member of the Sheriff's Department, and found that certain positions in the Sheriff's Department were completely non-civil in nature. Louis Russo, Budget Director of Erie County, stated that the budget for the Sheriff's Department and the jail was broken down into line items which specified the positions of criminal division deputies and civil division deputies, in addition to other positions. Based on its own investigations, the County Legislature, prior to enacting Local Law No. 2, had found that the Sheriff appointed and trained his deputies to perform definite duties and differentiated such duties and positions as deputies engaged in conservation of the peace and law enforcement and deputies engaged in civil work in his office. All employees in the Sheriff's Department, whether laborers, stenographers, bookkeepers, civil division deputies or criminal division deputies were all designated 'deputy sheriffs' even though their positions and jobs were not, in fact, positions and jobs constituting the work of a deputy sheriff.

On November 4, 1969, respondent Michael Amico, was elected Sheriff of Erie County and was sworn in on January 1, 1970. He commenced this action on December 23, 1969 by the service of a summons and complaint upon the appellants and moved for summary judgment for the relief demanded in the complaint. On December 30, 1969 the court restrained all parties from acting under Local Law No. 2, 1969 until the matter was finally determined. A summons and an amended complaint were served upon the appellants on January 30, 1970. Respondent sought a judgment declaring that Local Law No. 2, 1969 was unconstitutional, illegal, and invalid in that it was a violation of article 5, section 6 of the New York State Constitution, section 41(1)(b) of the Civil Service Law, section 209--q of the General Municipal Law, section 2002 of the Erie County Charter (Local Laws, 1959, No. 1 of County of Erie), and further because it was vague, indefinite and indeterminative as to its application.

Subsequently, the County Attorney, on behalf of the appellants, moved to dismiss the complaint pursuant to CPLR 3211(a)(7) on the ground that the complaint failed to state a cause of action. On the return date of that motion, the appellants requested that the court consider their motion to dismiss as a motion for summary judgment under CPLR 3211(c). Respondent also moved in open court for summary judgment based upon the amended complaint and appellants' affidavits.

The court granted respondent's motion in all respects and entered judgment declaring Local Law No. 2 to be invalid, unconstitutional, and in violation of law and of no force and effect, 64 Misc.2d 829, 315 N.Y.S.2d 926. From such order and judgment appellants appeal.

The court found that the employees of the Sheriff are clearly exempt from civil service under section 41(1)(b) of the Civil Service Law since they are 'deputies of principal executive officers authorized by law to act generally for and in place of their principals' (64 Misc.2d, at p. 834, 315 N.Y.S.2d, at p. 931). The court also found that the law as enacted is too vague and indefinite to determine its application fairly since it excepts a group from the competitive class for the vague reason that they are 'civil deputies'.

The Civil Service Law was enacted pursuant to directives contained in the State Constitution. Article 5, section 6, of the Constitution provides, in part, as follows:

'Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive * * *.'

Thus, the fundamental purpose of the civil service provisions is that positions in the civil service are to be filled by competitive examination so far as practicable. (See Matter of Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65.)

Section 35 of the Civil Service Law divides the civil service of the State into the unclassified and the classified service. The classified service contains four classes: exempt; non-competitive; labor; and competitive (section 40). Included in the exempt class are 'the deputies of principal executive officers authorized by law to act generally for and in place of their principals' (section 41(1)(b)). The purpose of the exempt class is to permit an appointment without civil service examination. (Matter of Byrnes v. Windels, 265 N.Y. 403, 193 N.E. 248.) Thus, the first problem is to determine whether deputy sheriffs come within the exemption stated in section 41(1)(b).

We...