Amico v. Erie County Legislature

• Decision Date: 25 November 1970
• Citation: 64 Misc.2d 829,315 N.Y.S.2d 926
• Parties: Michael A. AMICO, Sheriff of Erie County, Plaintiff, v. The ERIE COUNTY LEGISLATURE, B. John Tutuska, County Executive of Erie Countyand Donald M. Neff, Personnel Commissioner of Erie County, Defendants.
• Court: New York Supreme Court

Page 926

315 N.Y.S.2d 926

64 Misc.2d 829

Michael A. AMICO, Sheriff of Erie County, Plaintiff, v. The ERIE COUNTY LEGISLATURE, B. John Tutuska, County Executive of Erie Countyand Donald M. Neff Personnel Commissioner of Erie County, Defendants.

Supreme Court, Erie County.

Nov. 25, 1970.

[64 Misc.2d 830] Walsh & Schnorr, Buffalo (John B. Walsh, Buffalo, of counsel), for plaintiff.

Robert E. Casey, County Atty., for defendants.

MEMORANDUM

JOHN H. DOERR, Justice.

The plaintiff, Michael A. Amico, Sheriff of Erie County (hereinafter referred to as 'Amico'), has brought an action for a declaratory judgment against the Erie County Legislature, B. John Tutuska, the Erie County Executive, and Donald M. Neff, the Personnel Commissioner of Erie County, to declare Local Law No. 2, 1969, unconstitutional, illegal and invalid in that it is in violation of the New York State Constitution (Article 5, § 6), the General Municipal Law 209--q, the Civil Service Law ( § 41, subd. 1(b)) and the Erie County Charter ( § 2002) and that it is vague, indefinite and indeterminative as to its application.

Local Law No. 2, 1969 reads as follows:

'A LOCAL LAW amending the charter of the county of Erie in relation to placing certain employees of the Erie County Sheriff in the classified service under the Civil Service Law of the State of New York.

BE IT ENACTED by the Erie County Legislature as follows:

§ 1. The Erie County charter is hereby amended by adding thereto a new section, to be Section 1503 to read as follows:

Section 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.

§ 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.

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

A brief background of events proceeding, not necessarily leading to, the enactment of Local Law No. 2, 1969 and this proceeding might be helpful. The defendant, Tutuska, served as Sheriff of Erie County from September 1, 1959 to November 30, 1968 and since that time has been County Executive of Erie County. Upon his ascension to the office of County Executive, a successor to former Sheriff Tutuska was duly appointed on December 5, 1968 and served until December 31, 1969. The plaintiff, Amico, was elected Sheriff of Erie County on November 4, 1969 and his term of office commenced January 1, 1970. Up to this time all employees and deputies in the sheriff's department were appointed by the Sheriff and served at his pleasure.

On October 22, 1969 the Erie County Legislature enacted Local Law No. 2, 1969 (supra) and it was signed into law by defendant, Tutuska, on November 25, 1969, 'effective immediately'.

The action was commenced by the service of a summons and complaint upon the defendants along with an order to show cause why the relief demanded in the complaint should not be granted and further asking that the defendants, their agents and employees be stayed from acting under or implementing said Local Law No. 2, 1969.

On the return date of the order to show cause, the Court restrained all parties from acting under Local Law No. 2, 1969 until the matter was finally determined. The Court also directed the plaintiff to refrain from exercising what he regarded as his prerogative to replace whichever deputy sheriffs he wished with his own appointments, plaintiff's position being that deputy sheriffs serve at the will of the Sheriff.

Subsequently, but before the time to answer had expired, the County Attorney on behalf of the defendants moved to dismiss the complaint pursuant to Rule 3211(a)(7) CPLR on the ground that the complaint failed to state a cause of action. On the return date of that motion, the parties in open court stipulated that the action was properly one for a declaratory judgment and the parties stipulated that the proceeding under Article 78 CPLR be discontinued. The plaintiff then amended his pleadings in the action for a declaratory judgment by dropping certain parties defendant. The defendants then requested that the Court consider their motion to dismiss the complaint as aforesaid or to treat the motion as one for summary judgment, pursuant to Rule 3211(c) CPLR. The defendants submitted extensive affidavits in support of the motion. The plaintiff also moved in open court for summary judgment based upon the amended complaint and the defendants' affidavits.

The question to be answered in a motion to dismiss made under Rule 3211(a)(7) CPLR is whether a complaint properly states a cause of action, not whether the plaintiff has any substantial hope of proving one. (Weinstein-Korn-Miller, New York Civil Practice, Par. 3211.37). Every pleading question should be approached in the light of the salutary legislative enactment that 'Pleadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced.' (CPLR § 3026)

The test of prejudice is of primary importance.

'We would invariably disregard (pleading) irregularities, defects or omissions which are not such as to reasonably mislead one as to the identity of the transactions or occurrences sought to be litigated or as to the nature or elements of the alleged cause or defense.' (Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121)

In the instant case there is a complaint which sets forth a cause of action for a declaratory judgment with particularity as to the occurrences leading to the enactment of the local law complained of, the reasons for the plaintiff's belief that such law is unconstitutional and invalid, and the relief sought.

After reviewing the pleadings, including the affidavits submitted on behalf of the defendants, and hearing arguments of counsel, the Court will treat the motions made as motions for summary judgment.

The principal thrust of Local Law No. 2, 1969, simply put, is to place certain employees of the Erie County Sheriff in the classified service under the Civil Service Law of the State of New York. The law has a two-fold impact upon the Sheriff's department as it was constituted and operated prior to the legislative enactment complained of: 1. with the exception of two designated appointees of the Sheriff and his 'civil deputies', all employees of the Sheriff are to be hired by competitive examinations under the provisions of the Civil Service Law of the State of New York and 2. with the exception of two designated appointees of the Sheriff and his 'civil deputies', all employees of the Sheriff who had served in their respective positions for one year prior to the enactment of the law would be covered in their respective positions without examination.

From an examination of the line budget proposals for the year 1970 submitted as an exhibit with the affidavits on behalf of the defendants, it would appear that the plaintiff, Amico, instead of having potentially (assuming everyone in the Sheriff's department had served in their respective positions for one year) about 467 appointments to make upon assuming office, had only about 82 appointments at his disposal because of Local Law No. 2, 1969. This is mentioned merely in an attempt to grasp the overall picture of the effect of the legislation upon the plaintiff in his elected capacity and the accuracy of the Court's interpretation of the line budget is questionable since only the appellation 'Deputy Sheriff, Civil' has been included in the Court's numerical conclusions. The line budget characterizes as 'deputy' many other positions, such as stenographer, clerk-typist, account clerk, cashier, telephone operator, etc. which the Court has not included in the designation 'civil deputies'. No one has ever adequately explained to the Court what a 'civil deputy' is in the light of the statute and the realities of the Sheriff's office as it was constituted at the time the statute was enacted, and after. Arguments of counsel did concentrate on the role of a 'civil deputy' as opposed to a 'criminal deputy', as did some of the affidavits and both briefs dealt largely with this role.

The notion of competitive civil service was an enlightened design in its conception and is an enlightened design today. Professionalism in public employment is highly desirable and becomes each day more essential to the efficient and orderly management of government in the growing complexities of that government as a responsive agency to the needs of a community. This Court feels, however, that competitive civil service cannot be enacted virtually en masse for a department of government without delicate attention being given to existing laws which affect the department or employees or the elective office which will be influenced by such legislation.

Article 5, § 6 of the New, York State Constitution provides the primary directive for Civil Service appointments:

'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; * * *.'

The civil service of the State and each of its civil subdivisions is divided into the classified and unclassified service. (Civil Service Law § 35) The unclassified service roughly comprises elective offices,...