Westchester County, Civil Service Emp. Ass'n, Inc. v. Cimino

• Decision Date: 18 July 1977
• Citation: 58 A.D.2d 869,396 N.Y.S.2d 692
• Parties: In the Matter of WESTCHESTER COUNTY, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., et al., Respondents, v. Joseph A. CIMINO, as Commissioner of Hospitals of the County of Westchester, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 692

396 N.Y.S.2d 692

58 A.D.2d 869

In the Matter of WESTCHESTER COUNTY, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., et al., Respondents, v. Joseph A. CIMINO, as Commissioner of Hospitals of the County of Westchester, et al., Appellants.

Supreme Court, Appellate Division, Second Department.

July 18, 1977.

Gerald Harris, County Atty., White Plains (Jonathan Lovett, New York City, of counsel), for appellants.

Grae & Rose, White Plains, for respondents.

Before LATHAM, J. P., and SHAPIRO, HAWKINS and SUOZZI, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 inter alia to compel the reinstatement of the individual petitioners to their job positions, the appeal is from a judgment of the Supreme Court, Westchester County, dated March 22, 1977, which granted the petition by (1) declaring that the job positions had been abolished in bad faith and (2) reinstating the individual petitioners to their positions, with full back pay and benefits, retroactive to December 31, 1976.

Judgment reversed on the law, without costs or disbursements, and proceeding dismissed on the merits.

Until December 31, 1976 petitioners were employed by appellant Westchester County as permanent watchmen in the labor class of the civil service and were assigned to duties at the county's medical center. In addition, during 1976, additional security at the medical center was furnished by a private security firm pursuant to a contract with the county.

In preparing the budget for 1977, the county rejected a proposal to create a new 21-man security force composed entirely of county employees and noted that "by private contract the County does not incur any cost for uniforms or fringe benefits which currently average 32% of gross salary."

Thereafter the county adopted a budget which made no provision for either watchmen or security guards. The individual petitioners' positions were abolished as of December 31, 1976. Since the 1976 contract with the private security guards at the medical center expired on December 31, 1976, the county authorized competitive bidding for an emergency, three-month, private security guard contract. This contract was awarded to the firm of Effective Security, Inc. (Effective) and private guard service under the new contract commenced as of January 1, 1977.

Petitioners then commenced this proceeding, seeking reinstatement to their positions "as security guards" at the medical center with full back pay and benefits retroactive to December 31, 1976.

The thrust of the petition was that the 1977 contract between the county and Effective masked an employer-employee relationship between the county and Effective's employees and that the latter had been appointed to the individual petitioners' civil service job positions in violation of the New York State Constitution, and, in particular, section 6 of article V thereof, which provides, in pertinent part:

"Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive."

In granting the petition, the Special Term adopted petitioners' arguments, directed that the individual petitioners be reinstated and declared that their positions as watchmen had been abolished in "bad faith". We disagree with the conclusion reached by the Special Term.

It is well settled that municipal subdivisions of the State are free to contract with private industry for the rendition of work and services and that section 6 of article V of the State Constitution does not require that all services provided to a county be performed by persons directly employed by it (Matter of Corwin v. Farrell, 303 N.Y. 61, 66, 100 N.E.2d 135, 137). A contract for the provision of services by the private sector to the government can be challenged as violative of section 6 of article V of the Constitution only where the private contracting party's employees are not independent of the government, but are controlled and supervised by government officials (Matter of Corwin v. Farrell, supra ).

In Corwin, tenured competitive civil service employees were discharged by the New York City Housing Authority after that authority contracted with a private corporation for the performance of the same title examination services which the civil service employees had previously been performing. In dismissing the government...