Hunt v. Board of Fire Com'rs of Massapequa Fire Dist.

• Citation: 327 N.Y.S.2d 36,68 Misc.2d 261
• Parties: Application of John HUNT, Petitioner, v. BOARD OF FIRE COMMISSIONERS OF the MASSAPEQUA FIRE DISTRICT, Respondent.
• Decision Date: 29 November 1971
• Court: United States State Supreme Court (New York)

Page 36

327 N.Y.S.2d 36

68 Misc.2d 261

Application of John HUNT, Petitioner, v. BOARD OF FIRE COMMISSIONERS OF the MASSAPEQUA FIRE DISTRICT Respondent.

Supreme Court, Special Term, Nassau County, Part I.

Nov. 29, 1971.

[68 Misc.2d 262] David B. Pressman, Mineola, for petitioner.

Richard E. Rahn, Massapequa, for respondent.

MEMORANDUM

BERNARD S. MEYER, Justice.

Control over the hair style of a member of a volunteer fire department is at issue in this Article 78 proceeding. A prior related proceeding against the same Board of Fire Commissioner was dismissed without reaching the constitutional question attempted to be presented, because the regulation had not been validly adopted, Thompson v. Board of Fire Commissioners, 64 Misc.2d 477 and 479, 315 N.Y.S.2d 480. On October 13, 1970, the Board of Fire Commissioners approved Bulletin 2--69, as clarified by the Chief's letter of October 13, 1970. As a result of that approval it is now the rule governing all members of the Department that:

'A) Hair must not touch the collar.

B) Sideburns must not extend below the ear.

C) Mustaches must be nealty trimmed not extending below the lower lip.

D) No beards allowed.'

Petitioner Hunt has been suspended from membership in the Department for one year, pursuant to General Municipal Law § 209--l, after hearings before a Special Officers' meeting of the Department and before the District's Board of Fire Commissioners, on charges that his hair and sideburns violated provisions A and B above. He concedes that his hair length and sideburns violate the Bulletin, that he has been accorded procedural due process in the presentation of the charges, and that his refusal to conform to the Bulletin constitutes misconduct on his part warranting removal or suspension under GML § 209--l unless, as he vigorously contends, it violates his constitutional rights. The Board equally as vigorously argues, first, that on becoming a member of the Department petitioner agreed to abide by its rules, regulations and by-laws and has no constitutional right to be a fireman, and second, that its regulation is necessary to create a uniform appearance among firemen of the Department and in the interest of safety. For the reasons hereafter stated the court holds that the Bulletin and the order suspending petitioner made in enforcement of the Bulletin violate petitioner's constitutional rights.

A preliminary question arises because, though the application is directed to the May 5, 1971 order of the Board suspending petitioner, it necessarily involves the constitutionality of the regulation adopted by the Board on which that order was based. An Article 78 proceeding is generally an inappropriate vehicle to test the constitutionality of legislative action, Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 458, 322 N.Y.S.2d 696, 703, 271 N.E.2d 537, 542; Matter of Lakeland Water Dist. v. Onondaga Auth., 24 N.Y.2d 400, 407, 301 N.Y.S.2d 1, 5, 248 N.E.2d 855, 858. The rule is different when the issue is whether a statute, ordinance or regulation has been applied in an unconstitutional manner, Matter of Overhill Bldg. Co. v. Delany, supra; Matter of Diocese of Rochester v. Planning Board, 1 N.Y.2d 508, 521, 154 N.Y.S.2d 849, 857, 136 N.E.2d 827, 833, but the parties have stipulated in a conference with the court that the evidence presented at the hearing of March 22, 1971 was directed not to whether John Hunt's hair length and sideburns prevented a face mask from making a proper seal when applied to his face, but to putting before the Board (and the court) the evidence concerning the relationship between hair length and safety on the basis of which the Board in its legislative capacity approved the Bulletin. It is, thus, clear that what is at issue is not the sufficiency of the evidence to sustain the order of dismissal at to John Hunt, but the constitutional validity of the Bulletin upon which the order was based. Such being the case, and the Board as the 'legislative body' being the only necessary party to such an action, the court will exercise its power to treat the proceeding as an action for a declaratory judgment, CPLR 103(b), in which the constitutionality of the Bulletin may properly be considered, and the papers now before it as a motion for summary judgment in that action. Since the procedure under CPLR 7804(e) is 'exactly analogous to summary judgment,' Matter of Teperman v. Atcos Baths, Inc., 7 A.D.2d 854, 855, 182 N.Y.S.2d 765, 768, there is no unfairness to the Board in doing so.

The Board's argument based on John Hunt's promise in his application to 'obey the rules, regulations, by-laws and all other laws and directions of the officers elected or appointed over me according to law' makes it appropriate for the court to note that Hunt's removal was by the Board rather than the members of the Department and that, therefore, the last sentence of GML § 209--l has no bearing on this case, see Matter of Acker v. Board of Fire Commissioners, 25 A.D.2d 282, 269 N.Y.S.2d 628; Matter of Schenck v. Fire Council, 35 Misc.2d 685, 231 N.Y.S.2d 511. The predicate for the Board's argument is, rather (as the language of Paragraph 10 of Commissioner Wernersbach's affidavit shows), Mr. Justice Holmes' statement in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 that 'petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman,' or as it was more recently put in Matter of Krolick v. Lowery, 32 A.D.2d 317, 322, 302 N.Y.S.2d 109, 114, affd. 26 N.Y.2d 723, 308 N.Y.S.2d 879, 257 N.E.2d 56, cert. den. Vyse v. Lowery, 397 U.S. 1075, 90 S.Ct. 1524, 25 L.Ed.2d 810, with respect to firemen disciplined for failure to submit to a blood test for alchohol and failure to use a safety belt.

'There is no constitutional right to be a fireman. When one voluntarily elects to be a fireman he swears, voluntarily, to obey the orders and directions of his superiors to the best of his ability. The oath does not contain the reservation that obedience is conditioned upon personal agreement with such order. Necessarily he waives certain rights when he takes the oath.'

While the distinction drawn by Mr. Justice Holmes and in Matter of Krolick, supra, was espoused in Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, affd. by an equally divided court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352, the Supreme Court has in a case decided as recently as June, 1971, stated that it 'now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege',' Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534; see also Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082; Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280, 88 S.Ct. 1920, 20 L.Ed.2d 1082; Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; People v. Samuel, 29 N.Y.2d 252, 327 N.Y.S.2d 321, 277 N.E.2d 381 (decided Nov. 17, 1971); Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439; Van Alstyne, The Constitutional Rights of Public Employees: A Comment on the Inappropriate Uses of an Old Analogy, 16 U.C.L.A.L.Rev. 751; Developments in the Law--Academic Freedom, 81 Harv.L.Rev. 1045, 1079.

The Board of Fire Commissioners may promulgate such rules and regulations as are reasonably necessary for the effective conduct of the departments within its district, but those rules and regulations are subject to applicable constitutional, as well as statutory, limitations, Kane v. Walsh, 295 N.Y. 198, 207, 66 N.E.2d 53, 56; see Matter of O'Reilly v. Grumet, 284 App.div. 440, 444, 131 N.Y.S.2d 521, 525, affd. 308 N.Y. 351, 126 N.E.2d 275. A rule which denies or unreasonably limits a constitutional right of a public employee is invalid not because there is a constitutional right to public employment, but because the constitutional rights of all citizens, public employees included, may only be restrained for a reason rationally related to the public interests, which sufficiently benefits the public interest to outweigh the impairment of the individual's constitutional right, and for which there exists no alternative less destructive of the individual's constitutional right, United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Birnbaum v. Trussell, 2 Cir., 371 F.2d 672; Bagley v. Washington Township Hospital District, 65 Cal.2d 499, 55 Cal.Rptr. 401, 421 P.2d 409. Van Alstyne, op. cit. supra, 81 Harv.L.Rev. at pp. 1449, 1462; and see Matter of Di Maggio v. Brown, 19 N.Y.2d 283, 287, 279 N.Y.S.2d 161, 163, 225 N.E.2d 871, 872. The fact that public employment may be denied does nto mean that it may be subjected to unreasonable conditions, or that it may be granted on condition that constitutional rights be waived, Pickering v. Board of Education, supra, 391 U.S. at p. 568, 88 S.Ct. 1731; Bagley v. Washington Township Hospital District, supra, 65 Cal.2d at pp. 506--508, 55 Cal.Rptr. at p. 407, 421 P.2d 409; Van Alstyne, op. cit. supra, 81 Harv.L.Rev. at p. 1445. It follows that John Hunt's promise to obey Department rules must be read as requiring only that the comply with rules not in violation of his constitutional rights, and not as a waiver of such rights.

Implicit in what has been so far written is that a volunteer fireman is a public employee. The record not being entirely clear in this respect, the attorneys in conference with the court have stipulated that the Fire District was created by the County Board of Supervisors pursuant to Section 38 of the County Law as enacted by Chapter 16 of the Laws of 1909. That Sec...