City of New York v. City Civil Service Com'n

• Decision Date: 01 December 1983
• Citation: 60 N.Y.2d 436,470 N.Y.S.2d 113,458 N.E.2d 354
• Parties: , 458 N.E.2d 354 In the Matter of the CITY OF NEW YORK et al., Appellants, v. CITY CIVIL SERVICE COMMISSION et al., Respondents. In the Matter of the DEPARTMENT OF PERSONNEL OF the CITY OF NEW YORK et al., Appellants, v. CITY CIVIL SERVICE COMMISSION et al., Respondents. In the Matter of the CITY OF NEW YORK et al., Appellants, v. CITY CIVIL SERVICE COMMISSION et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 113

470 N.Y.S.2d 113

60 N.Y.2d 436, 458 N.E.2d 354

In the Matter of the CITY OF NEW YORK et al., Appellants, v. CITY CIVIL SERVICE COMMISSION et al., Respondents.

In the Matter of the DEPARTMENT OF PERSONNEL OF the CITY OF

NEW YORK et al., Appellants, v. CITY CIVIL SERVICE COMMISSION et al., Respondents.

In the Matter of the CITY OF NEW YORK et al., Appellants, v. CITY CIVIL SERVICE COMMISSION et al., Respondents.

Court of Appeals of New York.

Dec. 1, 1983.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Paul T. Rephen and Leonard Koerner, New York City, of counsel), for appellants in the first, second and third above-entitled proceedings.

Raymond E. Kerno and Richard Hartman, New York City, for respondents in the first and second above-entitled proceedings.

Michael Washor, New York City, for Warren Van den Houten, respondent in the third above-entitled proceeding, precluded.

Kenneth J. Knuckles, Yonkers, for City Civil Service Com'n, respondent in the third above-entitled proceeding, precluded.

OPINION OF THE COURT

KAYE, Judge.

On March 24, 1970, respondent police officers, as Armed Forces reservists, were summoned to active duty to help maintain mail service during a postal workers' strike, but released a few hours later because of their essential civilian occupations. Based solely on that service, they claimed veterans' preference credits, which would place them ahead of other officers who achieved higher scores on police department promotional examinations. These related appeals raise two questions: first, whether appellant, the city Personnel Director, ¹ has standing to challenge the decisions of respondent City Civil Service Commission awarding the preference credits and second, assuming the challenge is procedurally proper, whether on the merits the commission's decisions should be sustained.

Each case before us had its genesis in disallowance of the claimed veterans' preference credits by appellant on the ground that, while respondent police officers were called for active duty, they were dismissed without having been used. On administrative appeal by the officers, respondent commission reversed and granted the applications, relying on an opinion of the Supreme Court, New York County, in Stendrini v. D'Ambrose (NYLJ, Dec. 5, 1977, p. 11, col. 2) that reservists called for active duty during the postal strike were entitled to veterans' preference credits without any minimum period of service. Appellant then brought article 78 proceedings challenging the commission's decisions. Special Term dismissed the petitions, holding that appellant lacked standing to seek judicial review and that on the strength of Stendrini the commission's decisions had rational bases and the Appellate Division, 91 A.D.2d 872, 458 N.Y.S.2d 432, affirmed, without opinion. We now reverse the orders below on both grounds. Appellant has standing to maintain these article 78 proceedings against respondent commission; the commission's decisions awarding veterans' preference credits to respondent police officers should have been annulled.

I

The conclusion that appellant lacked standing rested on the assumptions that this was merely an intra-agency dispute, that this court's decisions setting forth the basis for standing apply only to private parties seeking review of agency action taken against them, and that appellant has no standing to sue in the absence of an express legislative grant of authority. These premises are incorrect.

Appellant's challenge is not a mere intra-agency dispute. Under the legislative scheme for administering the civil service laws, it is appellant who is assigned the power and responsibility to set civil service policy in New York City, to enforce the civil service laws, and to assure the legality of appointments. Respondent commission has none of these duties, but instead functions, in prescribed circumstances, as a board to review determinations by appellant and by other agency heads.

Subdivision 4 of section 15 of the Civil Service Law empowers New York City to administer the provisions of the Civil Service Law through whatever form of administration it chooses to prescribe in its city charter. The New York City Charter provides that the Personnel Director "shall have all the powers and duties of a municipal civil service commission provided in the civil service law or in any other statute or local law" (N.Y.City Charter, § 811). Among appellant's responsibilities are to "preserve and promote merit and fitness in city employment" (N.Y.City Charter, § 810, subd. a), to establish and determine the appropriateness of eligible lists for civil service appointments (N.Y.City Charter, § 813, subd. a, pars. [4], [5] ), and to promulgate rules and regulations in furtherance of and consistent with the Civil Service Law (N.Y.City Charter, § 813, subd. c). In addition, in the exercise of the powers of a municipal civil service commission, appellant has the powers and duties to administer the provisions of the Civil Service Law (Civil Service Law, § 17), to prescribe and enforce rules for implementing the provisions of the Civil Service Law and section 6 of article V of the Constitution (Civil Service Law, § 20, subd. 1), to investigate the qualifications of applicants both before and after appointment and to revoke appointments where there is a finding of any illegality in the appointment (Civil Service Law, § 50, subd. 4), and to maintain actions in the Supreme Court to enjoin any violation of the Civil Service Law or rules and for such incidental relief as may be necessary (Civil Service Law, § 102, subd. 3).

Respondent commission, by contrast, has not been delegated the general powers and responsibilities of a municipal civil service commission. The only powers reserved to respondent are those of an appeals board: to hear and decide appeals by persons aggrieved by appellant's determinations (N.Y.City Charter, § 812, subd. c), and to hear and decide appeals in disciplinary proceedings (Civil Service Law, § 76).

It is thus clear that appellant, not respondent commission, has both policy-making authority and functional responsibility for civil service matters in New York City. Appellant is a municipal body separate from respondent commission. (Matter of Department of Personnel v. City Civ. Serv. Comm., 94 A.D.2d 5, 8, 462 N.Y.S.2d 878.) This is not a situation where appellant would lack standing to sue because the Legislature intended that one agency, as a mere agent of another, would be bound by the latter's determinations. (See Matter of Beaudoin v. Toia, 45 N.Y.2d 343, 408 N.Y.S.2d 417, 380 N.E.2d 246; Matter of Clemente v. Fahey, 45 N.Y.2d 756, 408 N.Y.S.2d 506, 380 N.E.2d 332.) The fact that respondent may serve as an appeals board for appellant's determinations does not preclude appellant from seeking review of those decisions by which appellant is aggrieved. (Matter of Flacke v. Freshwater Wetlands Appeals Bd., 53 N.Y.2d 537, 540, 444 N.Y.S.2d 48, 428 N.E.2d 380.)

In Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 8-11, 377 N.Y.S.2d 451, 339 N.E.2d 865 and Matter of Bradford Cent. School Dist. v. Ambach, 56 N.Y.2d 158, 163-164, 451 N.Y.S.2d 654, 436 N.E.2d 1256, we set forth three criteria for standing. Special Term refused to apply the factors identified in Dairylea because it believed they were limited to "private parties seeking review of agency action taken against them." Our subsequent decision in Bradford shows this belief was mistaken. Whether the challenge is raised by a private entity or, as here, by a governmental officer or agency with policy-making authority and functional responsibility in the subject area sought to be reviewed the factors to be applied in determining standing to seek review of an administrative decision are the same: (1) the interest asserted must be arguably within the zone of interest to be protected by the statutory or constitutional provisions sought to be enforced; (2) the administrative decision for which review is sought must be shown to have a harmful effect upon the party asserting standing; and (3) there must be no clear legislative intent negating review. Appellant meets these criteria.

First, the very sections of the Civil Service Law and the New York City Charter which give appellant the power and responsibility to ensure that city personnel such as respondent police officers are appointed and promoted in accordance with a system of merit and fitness establish that appellant's interest is within the zone of interest sought to be protected by the Civil Service Law. In Bradford, we held that a school board's interest and responsibility for determining whether a teacher is properly certified was sufficient to fulfill the "zone of interest" test for standing to challenge the decision of the Commissioner of Education that overruled the school board's determination and awarded certification to a teacher. (Matter of Bradford Cent. School Dist. v. Ambach, 56 N.Y.2d 158, 163-164, 451 N.Y.S.2d 654, 436 N.E.2d 1256, supra.) Appellant's interest is no less deserving of protection.

Second, respondent commission's decisions have a harmful effect upon appellant. Those decisions requiring promotional preferences irrespective of length or type of service interfere with the authority and discretion given to appellant to enforce the Civil Service Law and, if allowed to remain in force, would result in a significant policy determination by one entity that is within the authority of another. This is sufficient injury to justify standing. (Matter of Bradford Cent. School Dist. v. Ambach, 56 N.Y.2d 158, 164, 451 N.Y.S.2d 654, 436 N.E.2d 1256, supra; Matter of Department of Personnel v. City Civ. Serv. Comm., 94 A.D.2d 5, 8, 462 N.Y.S.2d 878, supra.)

Third, there is no clear legislative intent negating review. ² On the contrary, authority for appellant to seek judicial review of the commission's decisions regarding preference credits may be...