Town of Babylon v. Stengel

• Decision Date: 22 April 1964
• Citation: 250 N.Y.S.2d 514,43 Misc.2d 196
• Parties: Application of TOWN OF BABYLON, etc., Petitioner, for an order v. George STENGELet al., Respondents.
• Court: New York Supreme Court

Page 514

250 N.Y.S.2d 514

43 Misc.2d 196

Application of TOWN OF BABYLON, etc., Petitioner, for an order v. George STENGELet al., Respondents.

Supreme Court, Special Term, Suffolk County.

April 22, 1964.

Joseph P. Pfingst, Babylon, for petitioner.

George W. Percy, Jr., County Atty., Riverhead, for respondent Civil Service Commission.

Louis J. Lefkowitz, Atty. Gen., New York City, for respondent N.Y .S. Civil Service Commission.

HENRY TASKER, Justice.

Petitioner Town of Babylon brings this proceeding under CPLR Article 78 to compel respondent Suffolk County Civil Service Commission to jurisdictionally classify the position of Assistant Public Welfare Officer of the Town of Babylon in the exempt class of the classified civil service, rather than in the competitive class. Respondent New York State Civil Service Commission is a nominal party only, joined because of its statutory duties with respect to the jurisdictional classification of newly created positions.

The material facts are not in dispute. Petitioner Town of Babylon, pursuant to Social Welfare Law, § 67, employed a town public welfare officer. The position was jurisdictionally classified by respondent as in the competitive class. The incumbent retired January 1, 1962. Petitioner thereupon appointed a new town public welfare officer who filled the position as a provisional appointee. After scheduling and holding a competitive examination for the provisionally filled position, respondent established an eligible list on November 12, 1963. The provisional appointee was not on such list.

By resolution dated November 19, 1963, the Town Board authorized the Supervisor to act as Town Public Welfare Officer, (Social Welfare Law, § 67, subd. 1). By further resolution on November 29, 1963, the Town Board created the position of Assistant Town Public Welfare Officer pursuant to Social Welfare Law, § 67, subd. 1, and appointed the provisional incumbent to the position of Town Public Welfare Officer thereto. Statement pursuant to Civil Service Law, § 22 was duly filed with respondent. Respondent certified an appropriate title and jurisdictionally classified the new position in the competitive class. Thereafter, petitioner filed a formal request that the new position be jurisdictionally classified in the exempt class, which request respondent denied. Respondent has also refused to certify respondent's payroll as to the new position and the incumbent appointed by petitioner.

The gravamen of petitioner's application is that the Legislature itself, by virtue of the provisions of Social Welfare Law, § 67, has jurisdictionally classified the position of Assistant Town Public Welfare Officer in the exempt class. The language relied upon in subdivision 1 of such section states: 'The town public welfare officer, his assistant and other employees shall hold office during the pleasure of the town board'. Petitioner contends that since the incumbents may hold office only at petitioner's pleasure, the position must necessarily be in the exempt or noncompetitive classes, since a permanent appointee to a competitive position may not be removed except pursuant to Civil Service Law, § 75.

Both respondents by answer and affirmative defense deny petitioner's conclusions of law and allege that respondent County Commission was required to classify the position as competitive by the provisions of Civil Service Law § 44, and Constitution Article V, § 6. They also point to the previous classification of the position of Town Public Welfare Officer as being in the competitive class, and contend that petitioner may not abolish a competitive position and replace it with an exempt position, subordinate to the abolished position. Respondent State Commission also argues that petitioner has no standing to bring this proceeding.

Respondent State Commission's latter contention that petitioner is not an aggrieved party and has no legally cognizable interest in the controversy is wholly without substance. Ottinger v . Civil Service Commission 240 N.Y. 435, 148 N.E. 627; cf. Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65; cf. Powers v. Taylor, 207 Misc. 465, 139 N.Y.S.2d 166, aff'd 286 App.Div . 575, 146 N.Y.S.2d 194, aff'd 3 N.Y.2d 952, 169 N.Y.S.2d 27, 146 N.E.2d 786; see Klipp v. State Civil Service Commission, 42 Misc.2d 35, 247 N.Y.S.2d 632.

The mandate of Article V, § 6 of the Constitution is clear All appointments to positions in the civil service must be made according to merit and fitness to be ascertained as far as practicable by competitive examination. Both the Legislature and the various civil service commissions may provide otherwise, classifying positions in the classified service as exempt or non-competitive when it is not practicable to fill such positions by competitive examination, within the limits defined in Ottinger v. Civil Service Commission, supra, and in the Civil Service Law, (§ 40 through § 44). The position of Assistant Town Public Welfare Officer is not one of those described in the Civil Service Law, § 41, subd. 1(a) through (d), nor does petitioner contend that it is an office or position for the filling of which a competitive or non-competitive examination may be found to be not practicable, (Civil Service Law, § 41, subd. 1(e); § 42; § 44). Petitioner relies solely on the alleged legislative classification arising from the cited language in Social Welfare Law, § 67, subd. 1.

The Legislature may not jurisdictionally classifiy a particular position in the exempt class unless it is one for which ascertainment of merit and fitness, or the filling of which, by competitive examination, is not practicable, (Ottinger v. Civil Service Commission, supra; Carow v. Board of Education, 272 N.Y. 341, 6 N.E.2d 47; Andresen v. Rice, supra; Volgenau v. Finegan, 163 Misc. 554, 296 N.Y.S. 101, aff'd 250 App.Div. 757, 295 N.Y.S. 758.) Accordingly, the Court must hold that the Legislature does not have the power to exempt positions of the type here involved from the action of the Civil Service Law and the constitutional mandate (Aversa v. Finegan, 164 Misc. 162, 298 N.Y.S. 618, aff'd 250 App.Div . 752, 295 N.Y.S. 768, aff'd ...