Mandle v. Brown

• Decision Date: 25 June 1958
• Citation: 177 N.Y.S.2d 482,5 N.Y.2d 51,152 N.E.2d 511
• Parties: , 152 N.E.2d 511 Leroy MANDLE, Respondent-Appellant, v. Peter Campbell BROWN, as Corporation Counsel of the City of New York, et al., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 482

177 N.Y.S.2d 482

5 N.Y.2d 51, 152 N.E.2d 511

Leroy MANDLE, Respondent-Appellant, v. Peter Campbell BROWN, as Corporation Counsel of the City of New York, et al., Appellants-Respondents.

Court of Appeals of New York.

June 25, 1958.

Peter Campbell Brown, Corp. Counsel, New York City (Seymour B. Quel and Leo A. Larkin, New York City, of counsel), appellant-respondent in person and for Joseph Schechter and others, appellants-respondents.

A. Bernard King, New York City, for Murray Herman, individually and on behalf of the Civil Service Technical Guild, Local 375, American Federation of State, County and Municipal Employees, AFL-CIO, amicus curiae, in support of position of appellants-respondents.

Charles F. Murphy, New York City, for Assn. of Reclassified Employees in the Civil Service of the City of New York, amicus curiae, in support of position of appellants-respondents.

John Harold, New York City, for respondent-appellant.

Myron Caruso, Brooklyn, for American Legion of Queens County, Dept. of New York, amicus curiae, in support of respondent-appellant's position.

Bernard A. Helfat, New York City, for Harry Spangenberger, individually and on behalf of the petition group, Queensborough civil service employees, amicus curiae, in support of respondent-appellant's position.

FROESSEL, Judge.

These are cross appeals on certified questions. Petitioner brings this article 78 proceeding in his capacity as a citizen, alleging that the reclassification without competitive examination of some 46 former grade 4 attorneys in the office of the corporation counsel of New York City constitutes an illegal promotion (N.Y.Const., art. V, § 6). Petitioner is employed in the same office, having been originally appointed tax counsel, grade 4. In the reclassification he and some 90 other former grade 4 attorneys in the office were given the new title of 'attorney', while those persons whose assignments he seeks to nullify were given one of the three titles higher than that of 'attorney', namely, senior attorney, supervising attorney, and principal attorney.

The administrative action which petitioner challenges is part of a city-wide reclassification of some 125,000 positions. The reclassification had its origin in 1950 when Mayor O'Dwyer, on the recommendation of the Bureau of the Budget and various civic groups, named a committee on management survey to study the entire city civil service structure. A firm of public administration and finance consultants was engaged to survey 59 city agencies and 11 cultural institutions, and to suggest a comprehensive plan of job classification, including salary schedules. Its survey covered some 86,000 positions.

In 1953, after holding numerous hearings and conferences looking toward the creation of a 'career and salary plan', the Mayor's committee reported: 'The existing titles and classes used by the City have evolved without systematic plan over the past decades and leave a great deal to be desired. Identical titles have totally different meanings in the several departments and similar work is paid for at different rates.' In proposing reclassification of the city civil service, the committee recommended the use of 'equivalencies', whereby each existing title would be correlated with a title in the new classification.

In 1954, the Legislature, at the request of Mayor Wagner, enacted a law amending the New York City Charter by creating a City Civil Service Commission (hereinafter called the Commission) in place of the old Municipal Civil Service Commission (L.1954, ch. 354; New York City Charter, §§ 811-819). It also created a Department of Personnel, of which the Commission would be a part, with a personnel director to serve as chairman of the Commission, who was given broad powers including the power to make studies and recommendations with regard to grading and classifying civil service positions. In approving the law, Governor Dewey stated, among other things, that it represents 'a major improvement over present procedures' (McKinney's 1954 Session Laws of N. Y., pp. 1389-1390).

Thereafter the Board of Estimate, pursuant to its powers under the New York City Charter ( §§ 67, 68), approved the establishment of a career and salary plan, and adopted a general pay plan to provide 'fair and comparable pay for comparable work, and regular increases in pay in proper proportion to increase of ability as demonstrated in service'. The board resolved that the salary of positions subject to the plan should not be reduced for the then permanent incumbents nor should their rights or status be in any way impaired.

The Commission, with the approval of the State Civil Service Commission, provided in a companion resolution that each position or class of positions subject to the career and salary plan 'shall be classified under a standard title and allocated to an appropriate salary grade as soon as practicable following the adoption of this rule, and, upon such position classification and salary grade allocation, the Personnel Director shall establish schedules of equivalent titles indicating in each case the former title of each position and the standard title and salary grade to which such position is classified and allocated.' The resolution stated that the rights of permanent incumbents should not be impaired, and that those entitled to an unlimited salary grade prior to reclassification (e. g., persons in grade 4) would not be subject to a maximum salary, even if placed in new positions with such a maximum. The resolutions provided for classification appeals boards to hear all protests and appeals on salary allocations and reallocations and on position classification and reclassification.

After a series of hearings and discussions concerning new grades, titles and salaries with some 130 employee groups, with every department head, and professional and civic organizations, Personnel Director Schechter submitted to the Board of Estimate his proposals for the reclassification and salary grade reallocation of, among others, the legal positions in the competitive class of the city service.

He recommended the following table of equivalencies: law assistants, grade 2, were to become junior attorneys; the various legal positions in grade 3 were to be given the title of assistant attorney; and all attorneys in grade 4, the highest competitive grade in the legal service, unlimited as to salary, were to be assigned to the new ranks and grades of attorney, senior attorney, supervising attorney and principal attorney. These new titles carried progressively higher minimum and maximum salaries and differing degrees of responsibility as illustrated in the description of duties attached to the personnel director's report. As with all other positions to which the career and salary plan applied, annual salary increments were provided.

Before reclassification there were some 137 ^* grade 4 attorneys in the corporation counsel's office, performing functions of varying importance and receiving salaries ranging from the Minimum of $4,876 ($6,345 for tax counsel) to $14,000. Because this was an unlimited salary grade, employees in grade 4 had been assigned different salaries as well as different degrees of responsibility, without requiring promotional examinations.

The Commission adopted the personnel director's recommendations and declared that all persons permanently employed in the then present legal classes were 'eligible for reclassification, without further examination, as indicated in the table of equivalencies'. Its action was approved by the Mayor and by the State Civil Service Commission. Since exact equivalencies could not be set up with regard to persons formerly in grade 4 (and the other some 15,000 persons in unlimited salary grades), an on-the-job survey was made. Pending its completion, petitioner and all other attorneys in former grade 4 were assigned on April 17, 1956 to the position of 'attorney', subject to more specific classification as a result of the survey.

The survey, to determine actual duties and responsibilities of incumbents, consisted of questionnaires filled out by each incumbent and verified by his immediate superior, and 'desk audits' or personal interviews. Changes in titles were said to be in conformity with the work actually done prior to reclassification. Upon completion of the on-the-job survey, the former grade 4 attorneys in the corporation counsel's office were, on July 15, 1956, reclassified as follows: 9 were given the title of principal attorney with a salary range from $11,200 to $13,600; 13 were given the title of supervising attorney with a salary range from $10,300 to $12,700, and 24 were given the title of senior attorney with a salary range from $9,000 to $11,100. The rest, including petitioner, were assigned the title of attorney with a salary range from $7,100 to $8,900. Inasmuch as the salary for former grade 4 was unlimited, no one by this reclassification received a salary beyond that fixed for said grade 4 (Civil Service Law, § 16, subd. 7).

Several weeks thereafter, petitioner instituted this proceeding. It is clear from a reading of the petition, reply and reply affidavits that petitioner's complaint is not directed towards the career and salary plan as such indeed he states he is seeking to 'save' the plan nor towards the creation of different titles and higher salaries for employees in the legal service, nor towards the use of equivalencies. The substance of his claim, as indicated by the language of his reply and reply affidavit, is that a 'few chosen persons' in the corporation counsel's office were given 'unjustifiable preferment' on the basis of 'personal influence and favor'. In other words, the essence of his petition is an attack not upon the plan of reclassification itself but upon the way it was administered with regard to his particular department.

Petitioner urges that the duties of tax counsel were lower in...