Grossman v. Rankin
| Decision Date | 21 December 1977 |
| Citation | 373 N.E.2d 267,43 N.Y.2d 493,402 N.Y.S.2d 373 |
| Parties | , 373 N.E.2d 267 In the Matter of Arthur A. GROSSMAN, Individually and on behalf of others, Appellant, and John M. Gerity, Intervenor-Appellant, v. J. Lee RANKIN, as Corporation Counsel of the City of New York, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
This case presents a challenge by attorneys in the competiti class of civil service to the exempt classification of the Assistant Corporation Counsel positions in the Law Department of the City of New York. At the time of the institution of this litigation, 278 attorneys in the Corporation Counsel's Office were in the competitive class and 105 were classified as exempt. We hold that the positions under review were properly classified under the State Constitution and the Civil Service Law.
To begin with framework, the civil service in this State is divided into unclassified and classified service. The unclassified service is comprised of such persons, to name a few, as those holding elective offices, all officers and employees of the State Legislature certain offices filled by appointment of the Governor, and various other offices and positions (see, generally, Civil Service Law, § 35). The classified service, on the other hand, is comprised of all offices and positions not included in the unclassified service and is divided into four classes designated as exempt, noncompetitive, labor, and competitive (Civil Service Law, § 40; see, also, §§ 41-44). This controversy concerns the correctness of classification of various positions as exempt, as a result of which neither competitive nor noncompetitive examinations are required to fill these positions. A position is classified as exempt when it is found that an examination of prospective candidates is not practicable.
Petitioner-plaintiff is employed by the Law Department as a lawyer and is in the competitive class with the permanent civil service title of attorney. Various other competitive class attorneys in the Law Department were permitted to intervene. The litigation was commenced on June 4, 1970 by service of what is styled here as a petition-complaint which seeks, inter alia, an order directing the Corporation Counsel to cease and desist from employing approximately 100 exempt class attorneys, a declaratory judgment that the actions of respondents are in violation of the State Constitution and Civil Service Law, and a declaration that the exempt class attorneys are not legally entitled to their positions and that their employment should be terminated forthwith.
Prior to trial, an order was made limiting review to consideration of 16 out of the 100 or more positions challenged. In addition, on December 29, 1972, Trial Term remanded the proceeding to the Civil Service Commission to amplify the basis of its determination that the 16 exempt class attorneys were properly classified and to conduct an investigation concerni the propriety of all the exempt class positions in the Law Department, focusing on the questions of whether Assistant Corporation Counsels should be classified in the exempt class and, if so, how many should be so classified. On June 3, 1974, the matter proceeded to trial.
Of the 16 positions considered, Trial Term upheld the commission's classification as to 13. The positions determined to be properly classified were seven engaged in various types of litigation, two having responsibility for trial of real estate actions and proceedings and some drafting of legislation, three involving assistance to the Mayor's legislative representative and work incident to proposed legislation concerning policy matters which involve a high degree of confidentiality, and one position to handle trial work in Criminal Court and Family Court. Those found improperly classified were two positions involving the preparation of appellate briefs and oral argument in all appellate courts, and one engaging in proceedings to review the assessed valuation of property. Having determined that the latter three positions were improperly continued in the exempt class, trial court remitted the matter to the Civil Service Commission for appropriate classification. Upon appeal, the Appellate Division modified, as to those found by the trial court to be improperly classified, holding that there was a rational basis for the determination of the Civil Service Commission finding that all subject exempt class positions of Assistant Corporation Counsel were proper and necessary to the effective administration of New York City's legal affairs. For reasons that follow, we agree that the classifications were within statutory and constitutional confines.
Our Constitution provides that "(a)ppointments 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" (N.Y.Const., art. V, § 6). Pursuant to an authorization in the Constitution, the Legislature has enacted section 41 of the Civil Service Law which provides (subd. 1):
Before determining whether the constitutional and statutory requirements have been satisfied, it is necessary to consider procedural and statutory arguments urged by petitioner and one of the intervenors. One assertion is a two-fold challenge to the Civil Service Commission's method of compliance with the Civil Service Law, and the other concerns the burden of proof.
With respect to the time for compliance, within four months of the occurrence of a vacancy in an exempt position, the Civil Service Commission is required to study and evaluate such position and determine whether it is properly classified as exempt (Civil Service Law, § 41, subd. 2). In this regard, it is asserted that the court below erred in assuming that the argument was that after the four-month period the commission was ousted of jurisdiction. Instead, it is urged that the commission's failure to accomplish this task within the time set forth in the statute requires it to comply with procedures for classifying a newly created position involving notice and public hearings. Even if one were to accept the rather strained suggestion that this is not an ouster of jurisdiction, this argument is devoid of merit. The courts have repeatedly held that unless the language used by the Legislature shows that the designation of time was intended as a limitation on the power of the body or officer, the provision is directory rather than mandatory (Matter of Rochester Gas & Elec. Corp. v. Maltbie, 272 App.Div. 162, 71 N.Y.S.2d 326; see Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 380-381, 362 N.Y.S.2d 139, 145, 320 N.E.2d 859, 863; see, generally, McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 172; but see State Div. of Human Rights v. Board of Educ., 53 A.D.2d 1043, 386 N.Y.S.2d 166, affd. 42 N.Y.2d 862, 397 N.Y.S.2d 791, 366 N.E.2d 878, where dismissal was based on repeatedly protracted and prejudicial delays by a particular administrative agency). While the commission should seek to comply in a timely fashion with the guidelines of the statute, it is recognized that delays may occur and that the time provision as drafted is merely directory.
With respect to the manner of compliance, after a vacancy occurs in a position in the exempt class, the Civil Service Commission is required to determine "whether such position, as then constituted, is properly classified in the exempt class" (Civil Service Law, § 41, subd. 2). As to this requirement, based on a statement at trial by the chairman, it is asserted that the commission has improperly studied and evaluated the position being filled by the incoming employee rather than the position occupied by the prior incumbent. First of all, this asserted irregularity is contradicted by the Civil Service Commission report which states that it evaluates the duties and responsibilities of the particular position as then constituted. But, even assuming the provision was not mechanically followed, for purposes of the positions in question, there was sufficient compliance. The purpose of this evaluation is to prevent the creation of new positions under the guise of continuation of a former position. However, in this circumstance, a new position has not been created merely because different responsibilities are assigned. (Cf. Matter of Ryan v. City of New York, 228 N.Y. 16, 19, 126 N.E. 350, 351; People ex rel. O'Connor v. Girvin, 227 N.Y. 392, 125 N.E. 587.) The position of Assistant Corporation Counsel must be filled by an attorney and the fact that varying needs and developing areas of the law may require changing responsibilities does not show that a different position has been created. It is hardly the same as replacing a nonprofessional with one performing different tasks. At least as to these positions, the statute should not be so narrowly construed as to prevent the flexibility needed in a law department of this magnitude.
The next contention is that the courts below erred in not finding that the burden of proof was on respondents to show that an examination was not practicable. This argument is also without merit. The general rule is that...
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