DeLucia v. Lefkowitz, 1
| Decision Date | 15 June 1978 |
| Docket Number | No. 2,No. 1,1,2 |
| Citation | 62 A.D.2d 674,406 N.Y.S.2d 150 |
| Parties | In the Matter of Laurence F. DeLUCIA, Appellant, v. Louis J. LEFKOWITZ, as Attorney General of the State of New York, Respondent. (Proceeding) In the Matter of Joseph T. HOPKINS, Appellant, v. Louis J. LEFKOWITZ, as Attorney General of the State of New York, Respondent. (Proceeding) |
| Court | New York Supreme Court — Appellate Division |
Keniry & Keniry, Clifton Park (William H. Keniry, Clifton Park, of counsel), for appellants, National Commercial Bank Building.
Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Jean M. Coon, Albany, of counsel), respondent in person.
Before MAHONEY, P. J., and GREENBLOTT, KANE, MAIN and HERLIHY, JJ.
OPINION FOR AFFIRMANCE
Petitioner Hopkins held the position of Assistant Attorney General in charge of the Bureau of Claims and Litigation in the Department of Law. Petitioner DeLucia was the Assistant Attorney General in charge of the Contracts Unit in the same bureau. On September 30, 1976, a New York County Grand Jury indicted Hopkins on charges of perjury and bribe receiving and indicted DeLucia on four counts of perjury arising out of testimony concerning State consulting contracts and construction claims. First by telephone and then by letter dated October 5, 1976, respondent advised petitioners that they were suspended without pay, pending resolution of the criminal charges.
Petitioners brought these article 78 proceedings, alleging violations of due process in that respondent had suspended them without notice, without hearing and without cause. They sought reinstatement and back pay. Special Term held that petitioners were not entitled to hearings prior to suspension since they had not established cognizable liberty or property interests in continued employment and had not established coverage under the hearing provisions of section 75 of the Civil Service Law. Petitioners appeal the consequent dismissal of their petitions.
This court recently reviewed the liberty and property interests that fall within the purview of the Fourteenth Amendment in Matter of Petix v. Connelie, 61 A.D.2d 65, 401 N.Y.S.2d 882, relying primarily on the Supreme Court's analysis in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 and Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684. A complete review of that body of law is unnecessary here, particularly in view of Special Term's well-reasoned analysis.
It is clear that protected property interests include specific benefits to which an employee can establish his entitlement. These are created and defined by local laws, regulations and agreements. In the case before us, petitioners, as members of the exempt class of the Civil Service, do not hold their positions by right of entitlement but, rather, at the pleasure of the Attorney General (Executive Law, § 62). This was made clear to petitioners upon their retention.
Petitioners also claim a protectible liberty interest, that being the right to work and contract free from the stigma attaching to their suspensions. Again we refer to Petix, Roth and Bishop in rejecting this argument. There has been no public disclosure of the reasons for suspension (see Bishop v. Wood, supra ), so that a direct case for deprivation of rights arising from the suspension cannot be made. Nor do the circumstances surrounding the suspensions give rise to a finding that petitioners' names have been injured (Matter of Petix v. Connelie, supra ). The fact that petitioners have been indicted is not challenged, and that would appear to be the sole reason for the suspensions. There is neither claim nor proof that respondent has commented on the charges in the indictments. The injury stems from the indictments, not the suspensions. Further, even if proper allegations of injury to reputation had been made, petitioners would still not be entitled to a hearing to determine the validity of the suspensions, but only to a hearing to clear their names (Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 51 L.Ed.2d 92). The opportunity to vindicate themselves will come in the criminal proceedings. The petitioner DeLucia has failed to establish any right to a hearing.
Petitioner Hopkins argues, his constitutional claims aside, that section 75 of the Civil Service Law provides for a hearing upon stated charges before he can be disciplined. Hopkins claims coverage under paragraph (b) of subdivision 1 as a veteran of the armed forces. However, the paragraph specifically excludes from coverage a "private secretary, cashier or deputy of any official or department." We must decide whether petitioner Hopkins is a deputy for, if he is not, he is entitled to protection under this section.
We reject Hopkins' argument that a deputy is only one properly designated to serve as deputy. The term, as used in section 75 of the Civil Service Law, may be broader in meaning than the term as used in subdivision 1 of section 41 of the Civil Service Law (Matter of Behringer v. Parisi, 5 N.Y.2d 147, 154, 182 N.Y.S.2d 365, 370, 156 N.E.2d 71, 75; Matter of Byrnes v. Windels, 265 N.Y. 403, 405, 193 N.E. 248, 249).
In Byrnes, the Court of Appeals decided a case virtually identical to the one at bar. There, an Assistant Corporation Counsel in the City of New York had claimed statutory entitlement to a hearing under the Civil Service Law since he was a veteran, but the Corporation Counsel argued he was excepted as a deputy. The court relied in the main on a provision of the City Charter which gave the Assistant Corporation Counsel the power to "perform all and every duty belonging to the office of the corporation counsel, or so much of such duties as the corporation counsel shall deem it necessary to delegate." The charter required delegation of these duties to be in writing. Notwithstanding the absence of written delegation, the court held these counsel to be deputies within the contemplation of the Civil Service Law.
The court explained further why Assistant Corporation Counsel must be considered deputies.
The necessity for this provision in the charter is quite apparent when we remember the duties devolving upon the Corporation Counsel of a great city like New York, and which must be delegated to other lawyers. He is the law officer of the city and must appear in courts to defend or prosecute the city's litigation. He cannot do this work himself. It is a physical impossibility to be done by one deputy. There must be numerous lawyers to handle this work, not merely for the Corporation Counsel, but for the city, and while doing it they act very largely upon their own responsibility. Such at least must be the case when appearing in court. Discretion also very largely rests upon these assistant lawyers in the proper disposition of the case outside of court. Upon them rests as much responsibility in the individual case submitted to them as upon the head of the department or an attorney representing a private client. Thus, the charter from necessity says that in addition to their other duties they "possess every power and perform all and every duty belonging to the office of the corporation counsel * * * whenever so empowered. (Matter of Byrnes v. Windels, supra, pp. 409-410, 193 N.E. p. 250.)
An examination of sections 62 and 63 of the Executive Law as well as the nature of the position of Assistant Attorney General leads us inexorably to the conclusion that these assistants are deputies within the meaning of the Civil Service Law ( § 75, subd. 1, par. (b)). The Attorney General appoints such assistants and deputies as he deems necessary. The designation of deputy in any law, contract or document shall include Assistant Attorneys General (Executive Law, § 62). From a reading of section 63 of the Executive Law, it is apparent that the Attorney General is invested with a broad range of powers, far too many for one person to execute. In fact, in at least three instances, a deputy is specifically mandated to act in the stead of the Attorney...
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