Kempf v. Town of Brockhaven

• Decision Date: 01 December 1969
• Citation: 61 Misc.2d 283,305 N.Y.S.2d 658
• Parties: Ruth KEMPF, Petitioner v. TOWN OF BROOKHAVEN, Respondent.
• Court: New York Supreme Court

Page 658

305 N.Y.S.2d 658

61 Misc.2d 283

Ruth KEMPF, Petitioner v. TOWN OF BROOKHAVEN, Respondent.

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

Dec. 1, 1969.

Lester B. Lipkind, Babylon, for petitioner.

Oscar J. Bloom, Mt. Sinai, for respondent.

JACK STANISLAW, Justice.

Petitioner seeks reinstatement as secretarial assistant in the Industrial Commission of the Town of Brookhaven (hereinafter 'Commission'), a position held by her since August 30, 1960, with permanent civil service status. She lacks one year to attain a vested interest in retirement rights.

On January 2, 1969, by a vote of 2 to 4, the Town Board adopted the following resolution which precipitated this CPLR Article 78 proceeding:

'Whereas, Donald Weinmann, Industrial Commissioner for the Town of Brookhaven, has requested the abolishment of the position of Secretarial Assistant in the office of the Industrial Commission.

'Now, Therefore, Be It Resolved, that the position of Secretarial Assistant be abolished in the office of the Industrial Commission, effective as of January 31, 1969.'

The thrust of the petition is that the actions of Donald Weinmann ('Weinmann') and respondent, in abolishing the position, were 'committed in bad faith'. By decision dated April 2, 1969, denying a motion to dismiss the petition, this court stated:

'In the event that petitioner meets the burden of establishing that her position was not abolished in good faith, but in violation of the Civil Service Law and the Constitution, then she would be entitled to be reinstated to her former position, retroactive to the date of her alleged dismissal (citing Wipfler v. Klebes, 164 Misc. 220, 298 N.Y.S. 353, reversed 260 App.Div. 228, 22 N.Y.S.2d 1, reversed 284 N.Y. 248, 30 N.E.2d 581). There is, therefore, no reason to continue the stay provided for in the show cause order by which this proceeding was commenced.'

An order was entered accordingly and respondent served its answer. Petition then left the office, although she had remained there for three months after receiving a copy of the resolution. She has not worked since then, awaiting the outcome of the hearing held before the court to determine the factual issue of whether her position was abolished in good faith.

The authority of a Town Board to abolish a position which it has created is not disputed. But the abolition of a civil service position must always be in good faith (Schmidt v. Board of Supervisors of Monroe County, 244 App.Div. 493, 279 N.Y.S.2d 855). Bad faith, or the lack of good faith, may be established by showing that the abolishment was not real and that some person or persons subsequently performed all or part of the same or similar duties previously performed by petitioner (Schmidt v. Board of Supervisors, Supra; Wipfler v. Klebes, 284 N.Y. 248, 30 N.E.2d 581; People ex rel. Vineing v. Hayes, 135 App.Div. 19, 119 N.Y.S. 808).

Petitioner's ability and efficiency are not questioned. On the contrary, Weinmann himself testified: 'Mrs. Kempf I found to be a very knowledgeable person, a very astute individual as far as ferreting information out. But she performed her work very satisfactory in those areas. It was just that I felt this position did not require a person of this calibre in the office for this position.' Regarding her duties, Weinmann stated that his letters were 'shaped up' and typed by petitioner; that she compiled statistical information pursuant to his requests, took stenographic minutes at staff meetings and at regular monthly meetings of the Commission, sorted and routed mail, answered the phone; and that in his absence, she interviewed and screened visitors and prospects to determine the nature of their business and source of referral and filled out 'pre-formed' applications for 'follow-up' by him. Although he testified that petitioner covered the office from 9:00 to 4:30 daily, while he spent most of his time on the road, he estimated that her actual work consumed only 3 or 4 hours a day. As stated by its trial attorney, it is respondent's contention that Weinmann 'found that the amount of work that was being done didn't warrant this type of position'; and that Weinmann 'found in his honest opinion that this did not warrant the expenditure of over $9,000 or $8,000 for a salary for a person to do a job that he found by experience could be accomplished by a clerk-typist.'

Certainly, the elimination or discontinuance of a position to promote efficiency or economy is a valid exercise of legislative authority (Matter of Devins v. Sayer, 233 N.Y. 690, 135 N.E. 972). If that was the basis of the subject resolution, it was adopted in good faith and the abolishment of the position is valid. On the other hand, if the resolution was adopted, as petitioner contends, not for the purpose of efficiency or economy, but to oust her from her position and permit the substitution of another person or persons, not appointed according to merit and fitness established by a competitive examination, to perform substantially the same or similar services previously performed by her, then the abolishment was not in good faith and the resolution has no effect since, under such circumstances, it would constitute an unlawful violation of petitioner's rights under the Constitution and Civil Service Law (Wipfler v. Klebes, Supra, 284 N.Y. 248, 255, 30 N.E.2d 581, 585).

At the time the resolution was adopted, petitioner and Weinmann were the only salaried employees of the Commission. Weinmann has no civil service status. He was appointed by the Board on April 1, 1967, as executive secretary at an annual salary of $10,000. Petitioner had then been with the Commission for about seven years and for several months prior to Weinmann's appointment ran the office alone. After his appointment, she helped familiarize him with the office mechanics and procedures and, four months later, started her summer vacation. In her absence, a part-time summer employee performed the clerical work of the office under Weinmann's supervision.

Weinmann testified that when petitioner returned, it 'became apparent (to him) that a secretarial assistant was not needed'; that 'to better evaluate the duties required of the office' he obtained copies of duty statements prepared by the Civil Service Commission for the positions of secretarial assistant, stenographer, senior stenographer, clerk typist and clerk; that on March 29, 1968, he prepared and signed his own statement of duties required of the office in preparation of a proposed re-classification of the job and sent it to the Town Supervisor with a recommendation to abolish the position of secretarial assistant in his office; that when he evaluated the job in accordance with Civil Service Rules and Regulations, in March of 1968, he 'made a decision that senior...