McGowan v. Mayor of City of New York

• Decision Date: 04 June 1981
• Citation: 53 N.Y.2d 86,440 N.Y.S.2d 595,423 N.E.2d 18
• Parties: , 423 N.E.2d 18 James P. McGOWAN, Respondent, v. MAYOR OF CITY OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 595

440 N.Y.S.2d 595

53 N.Y.2d 86, 423 N.E.2d 18

James P. McGOWAN, Respondent, v. MAYOR OF CITY OF NEW YORK et al., Appellants.

Court of Appeals of New York.

June 4, 1981.

Allen G. Schwartz, Corp. Counsel, New York City (Alfred Weinstein and Leonard Koerner, Asst. Corporation Counsels, New York City, of counsel), for appellants.

Murray A. Gordon, Michael J. Horowitz, Philip A. Lacovara, Gerald Goldman and William R. Stein, New York City, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

The substantive issue we are called upon to determine is whether, under section 434a-3.0 of the New York City Administrative Code, a New York City police lieutenant whom the police commissioner assigned to act in a supervisory capacity in the detective division became entitled per se to an increase in his level of compensation. Insisting that he was, the plaintiff, James P. McGowan, whose case has been severed from consolidated actions in which a considerable number of other lieutenants and sergeants sought similar relief, sued for the statutory salary differential.

Section 434a-3.0, which outlines the methodology for structuring the detective division, authorizes the commissioner to staff it with members of the regular police force whom he "details" to such "service". In police parlance, "detailing" is accomplished by a routine personnel order by which a change of police duty is identified and effected. Of particular interest to this case is subdivision c of section 434a-3.0 which, added to this statute when it was amended in 1964, specified that, among the persons "so detailed," the commissioner is authorized to "designate lieutenants as commanders of detective squads" and sergeants as "supervisors" of such squads.

As the sole basis for his demand for a salary level beyond that which his rank as police lieutenant would have called for had he been detailed to other duty, the plaintiff relies on subdivision c's statement that lieutenants and sergeants "while performing duty in division and while so designated as commanders * * * or supervisors * * * shall be paid such salary as may be determined by the mayor" (emphasis supplied). ¹ It is undisputed that some individuals who were so assigned to these posts were also clearly, and indeed expressly, "designated" as such by the commissioner and, during the period they held these designations, were the recipients of the salary differentials fixed by the Mayor accordingly. It is also uncontested that neither the plaintiff nor, for that matter, any of the other suitors from whose cases his was severed, was ever the subject of such a designation or the beneficiary of a corresponding financial emolument.

Nevertheless, Special Term and the Appellate Division, 48 A.D.2d 621, 367 N.Y.S.2d 497 overruled the city's contention that designation by the com was an unfulfilled condition precedent to any possible recovery by Lieutenant McGowan. Instead, in the main because, in the view of these courts, it would have been fairer to have treated all those assigned to command or supervisory service equally, they held that de facto service in these posts sufficed to mandate the ordinance's salary benefits. In effect, at least in this context, any distinction between the terms "detail" and "designate" was rendered meaningless by these decisions. The result, after a drawn out course of litigation at nisi prius and in the Appellate Division, was a monetary judgment for the plaintiff. ² For the reasons which follow, we reach a contrary conclusion.

Preliminarily, we note that the wisdom or fairness of the statutory scheme, on which, as already indicated, the courts below so decisively commented, and to which the parties have alluded extensively in their briefs, is besides the point. No constitutional infirmity or violation of statutory law having been raised, these essentially are considerations for the Legislature and not for the courts (Matter of Rapp v. New York City Employees' Retirement System, 42 N.Y.2d 1, 6, 396 N.Y.S.2d 605, 364 N.E.2d 1297). Thus, it matters not if, in its practical application, as plaintiff hypothesizes, the ordinance may produce "organizational weaknesses", "chafed command relationships" or "chaotic" personnel practices, including the possibility that, because of the impact of seniority, the lack of an increase in the salary of a detailed but undesignated commander of a detective squad may mean that the commander will receive a lower salary than that of a detective under his command. Absent the constraint of any overriding legal or constitutional principle, it was similarly a matter for legislative judgment alone as to whether, especially given the quasi-military nature of the police, it would enhance rather than handicap their performance to vest the commissioner, who, in any event, is empowered to make and terminate the assignments in question as he sees fit, with authority to selectively designate from among those whom he favors with appointment to leadership roles, the ones who, in his judgment, deserve what the city's brief calls merit increases to "sharpen motivation and reward outstanding performance".

Focusing then on the applicable Administrative Code provision, we begin with a bit of unrefuted history of the circumstances that preceded, accompanied and followed its enactment. From these we observe that, well before subdivision c was incorporated in the 1964 enactment (Local Laws, 1964, No. 17 of City of New York), it had been the practice to allocate fewer budgetary lines for supervisors and commanders of detective squads than the number of officers who would be given such assignments. In exercising discretion as to the choice of designees, each commissioner, not surprisingly, would adopt different criteria. So, according to an affidavit by former Chief of Detectives Albert Seedman, submitted on behalf of the plaintiff and his then consolidated confreres, at least since 1956 "a rough form of seniority was in effect to allocate the limited number of budgetary lines to the greater number of supervisors and commanders of detective squads". (Cf. Matter of Hagan v. Murphy, 39 Misc.2d 82, 87, 239 N.Y.S.2d 913, affd. 19 A.D.2d 862, 243 N.Y.S.2d 414, affd. 14 N.Y.2d 701, 250 N.Y.S.2d 55, 199 N.E.2d 156.) And, according to an affidavit of a chief personnel officer for the police department, in his time and experience the commissioner would designate individuals only after the officer's "entire performance and experience record" had been reviewed before a board composed of high ranking officers.

It was in this setting that section 434a-3.0 of the Administrative Code was introduced "by request of the Police Commissioner" (1964 Proceedings of the Council of the City of New York, p. 679) and unanimously passed following a favorable committee report (id., p. 981). This report stated, in pertinent part (id., p. 977):

"incorporates into law positions presently authorized and provided for in the budget, namely

* * *

* * *

"(c) commanders and supervisors of detective squads who must be lieutenants and sergeants, respectively, at a salary to be determined by the Mayor.

"The positions of commander of detective squad, supervisor of detective squad, first, second and third grade detective have long been established in the Police Department's organization. However, except for the position of first grade detective, there has been no statutory authority for these designations. In order to provide a foundation for departmental organization, it is deemed necessary to include these designations within the Administrative Code."

That the proposed law was not intended to alter the practice of limiting the number of detective squad members who would be both detailed and designated appears from the bill jacket. Aside from the commissioner's request, it contains a memorandum to the Mayor's counsel from the director of the city budget in which the latter gives assurance that "the proposal, in general, would formalize what we are doing presently, and from that standpoint additional costs are not evident".

This contemporaneous comment turned out to be prophetic. Significantly, it was the nature of implementing legislative and executive action which made it so. Because there thereafter was no increase in the limited number of designees, no budget increase followed in the wake of the passage of the bill. In fact, no change in the number of supervisory positions funded adversely affected any budget until 1970-1971, and then it was to lower it.

Nor did the fact that many officers who were detailed to command or supervisory service went undesignated and unfunded go unnoticed. In 1967, the International Association of Chiefs of Police issued "An Organizational Study of the Police Department, New York City, N.Y.", in which it was publicly opined that "major problem exists in the police department in regard to the present rank structure (and accompanying pay grades of detectives). The present structure has caused a morale problem within the detective and supervisory ranks as well as the uniformed force because of the inequities involved * * * Members who are performing investigative tasks are paid the same salary as their supervisors in many instances" (p. 404).

This history is of far more than passing interest. To paraphrase Justice HOLMES, this case is one in which a page of history may be worth even more than a volume of logic (New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963). Thus, in the absence of a manifestation of intent to change a long-established practice, ordinarily no design to do so will be attributed to legislative action (Uniformed Firefighters Assn. Local 94, IAFF, AFL-CIO v. Beekman, 52 N.Y.2d 463, 471-472, 438 N.Y.S.2d 746, 420 N.E.2d 938; Matter of Delmar Box Co. 309 N.Y. 60, 66, 127 N.E.2d 808). Here there...