Kuczka v. Clark
| Decision Date | 21 May 1981 |
| Citation | 110 Misc.2d 273,441 N.Y.S.2d 854 |
| Parties | In the Matter of the Application of Kenneth A. KUCZKA, Petitioner, v. John V. CLARK, Commissioner, Erie County Department of Personnel, Bruce Manning, Chief of Police, Town of West Seneca, Town Board of the Town of West Seneca, Respondents. |
| Court | New York Supreme Court |
This matter came before this court by an order to show cause granted on July 2, 1980. A hearing was held on September 4, 1980 and continued on September 12, 23 and October 2, 1980. The matter was submitted after legal briefs were received with a final update on April 24, 1981. The petitioner seeks a judgment requiring the Commissioner of Personnel of the County of Erie to place the petitioner's name on the respondent Clark's certified Civil Service list of eligible candidates for the position of police officer/deputy sheriff-criminal. Respondent Clark has moved for an order dismissing the complaint and requesting summary judgment on the ground that the cause of action is without merit. The New York State Attorney General appeared as an intervenor and has moved for a judgment dismissing the petition insofar as it challenges the constitutionality and validity of section 58 of the Civil Service Law. In the alternative, the Attorney General has moved for a judgment declaring section 58 of the Civil Service Law constitutional in all respects.
The petitioner applied to take the Civil Service examination for police officer/deputy sheriff-criminal to be given on November 3, 1979 pursuant to a notice posted by the Erie County Civil Service Commission. The notice listed the residency requirements and minimal qualifications of candidates who wanted to take the examination. All the applicants for the examination were sent conditional admission cards. Their applications had not been fully reviewed to determine whether the individual candidates met the residency requirements or other minimal qualifications. The petitioner took the written examination and received a notice dated March 13, 1980 of his passing score of 97.0. He then was tested for agility, was physically examined and personally interviewed by staff members of the Erie County Civil Service Commission. In addition, he was given chest x-rays.
Sometime near the end of June, the petitioner contacted West Seneca Police Chief Bruce Manning to inquire about the possibility of his being hired before his twenty-ninth birthday on July 5, 1980. The petitioner was concerned that without Chief Manning's help, the respondent Town Board of West Seneca (which actually makes the appointments to vacancies in the position of police officer), would wait until after July 5, 1980 to rule on his application and would find him ineligible because he was too old.
Chief Manning spoke to Robert Cownie, Senior Personnel Specialist in charge of the Examinations Division of the Erie County Personnel Department, who told him the certified list of eligible candidates would be available for inspection on July 1, 1980 and that the petitioner's score on the examination was 97.0. Chief Manning, believing the petitioner most likely would be listed as the number one candidate, prepared a letter dated June 27, 1980, recommending the petitioner for appointment as a police officer to fill a vacancy. According to Chief Manning, the Town Board routinely appoints those persons he recommends for positions. The Board was scheduled to meet on June 30, 1980. Its next meeting was not scheduled to be held until July 7, 1980, two days after the petitioner's twenty-ninth birthday. Chief Manning's letter was not given to the Town Board on June 30, 1980, only because the list of eligible candidates had yet to be certified by the County.
Chief Manning was also told by Mr. Cownie that a problem existed with respect to the petitioner's meeting the Erie County Civil Service Commission's residency requirement. After learning of this potential problem from Chief Manning, the petitioner retained counsel who presented affidavits to the Commission in an effort to demonstrate that the petitioner was a resident of the Town of West Seneca. In spite of this effort, the petitioner received a notice of disqualification dated July 1, 1980 from the Erie County Department of Personnel which stated his name would not appear on the eligible list because he lacked legal residence in Erie County or in a contiguous county. The notice also said the petitioner would not be certified to any appointing authority until he remedied some weight problem.
The petitioner contends that but for respondent Clark's erroneous determination of the residency issue and erroneous application of an invalid rule, he could have been and probably would have been appointed to the West Seneca police force. He also argues that the County's procedure in establishing the list of eligible candidates was highly arbitrary and contrary to the purpose of having eligibility lists.
The respondents counter that the petitioner has not met the residency requirements and even if he is found to have met them, the petitioner could not have been appointed prior to his twenty-ninth birthday because the Town Board did not have a certified list until July 1, 1980.
Initially, this court must consider what is meant by the language in section 58 of the Civil Service Law. Subdivision 1 of section 58 provides in relevant part:
The respondent contends that because the petitioner reached his twenty-ninth birthday on July 5, 1980, he is "more than twenty-nine years of age", and cannot be appointed to the position of police officer. This court cannot agree that such an interpretation is compelled by the "plain meaning" of the statute.
In Whitehair v. Civil Service Commission of Monroe County, 56 A.D.2d 711, 392 N.Y.S.2d 583, a case with facts similar to the instant one, the plaintiff took a police officer examination while he was still twenty-eight years old. By the time the list of qualified applicants was published, he had reached his twenty-ninth birthday. 1 The Civil Service Commission refused to put his name on the list because it considered him to be too old for appointment under the law. The Whitehair appellate court upheld the constitutionality of section 58 of the Civil Service Law and its age limits (see Knapp v. Monroe County Civil Serv. Comm., 77 A.D.2d 817, 437 N.Y.S.2d 136, mot. for lv. to app. den. 51 N.Y.2d 708, 433 N.Y.S.2d 1028, 414 N.E.2d 403), by affirming Special Term's order granting summary judgment to the defendant Commission. Both courts, however, never explicitly addressed the issue of whether someone who had reached his or her twenty-ninth birthday, but not his or her thirtieth, actually exceeded the maximum age limitation of the statute, because it was never raised or argued by the parties (see Hartford Acc. and Ind. Co. v. Vil. of Hempstead, 48 N.Y.2d 218, 221 n.3, 422 N.Y.S.2d 47, 397 N.E.2d 737; Matter of Lindner, 71 A.D.2d 829, 419 N.Y.S.2d 375). The appellate court's decision in Whitehair, therefore, cannot be viewed as binding precedent on the question of the meaning of the phrase "more than twenty-nine years of age." This court must now endeavor to construe it.
A division of opinion exists as to whether a person is more than a certain age when he or she reaches a particular anniversary. Usually a person's age is attributed to the entire year between birth dates. In other words, a person is considered twenty-nine not only on his or her birthday, but also during the entire year until his or her thirtieth birthday.
The issue here, however, requires a more precise definition. A question presented is whether it is proper to treat the words "more than twenty-nine years of age" as being the same as "over twenty-nine years of age." The answer is yes. The Appellate Division, Fourth Department, in Knapp v. Monroe County Civil Service Commission (supra, 77 A.D.2d at 817, 437 N.Y.S.2d 136), described the effect of section 58 as prohibiting the original appointment of police officers "over twenty-nine years of age." (emphasis added). Courts have held that persons are not over a certain age until their next birthday is reached (People ex rel Makin v. Wilkins, 22 A.D.2d 497, 257 N.Y.S.2d 288; Oliver v. Blum, Supreme Ct., Orleans County, Jan. 30, 1980, Miles, J.; Wilson v. Mid-Continental Life Ins. Co., 159 Okl. 191, 14 P.2d 945; Watson v. Loyal Union Life Assn., 143 Okl. 4, 286 P.2d 888).
Further, in Makin (supra ), a statute making carnal abuse "of a child of the age of ten years" a felony, was held to apply in all those cases when the victim had not yet reached his or her eleventh birthday.
Similarly, appointees to the position of police officer must be considered twenty-nine years of age and not "more than twenty-nine years of age" until they have reached their thirtieth birthday.
If the twenty-ninth birthday was to be controlling on the issue of eligibility as the respondent contends, the Legislature would have employed the words "has reached his...
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