59 A.D.2d 906 | N.Y. App. Div. | 1977
In a proceeding pursuant to CPLR article 78 to compel the reinstatement of petitioner-respondent to his position of town engineer, with back pay, the appeal is from a judgment of the Supreme Court, Rockland County, dated March 31, 1977, which granted the application. Judgment reversed, on the law, without costs or disbursements, and proceeding remanded to Special Term for the purpose of conducting an evidentiary hearing consistent herewith with regard to the nature of petitioner’s appointment. Petitioner received a provisional appointment to the position of town engineer effective as of June 1, 1968. After taking a competitive examination, petitioner was again appointed to the position of town engineer as of February 28, 1969. The forms used in appointing petitioner indicate that the appointment was "permanent” and spaces provided in the forms for indicating when the term of office was to end were left blank. Section 24 of the Town Law provides, however, that "the town engineer * * * whenever appointed, shall hold their respective offices until the first day of January next succeeding the first biennial town election held after the time of their appointment.” Despite subsequent elections, petitioner continued in his position. In a contract entered into between the bargaining unit representing petitioner and the appellant Town of Clarkstown on March 23, 1976, petitioner was specifically listed and his salary set forth for the years 1975 to 1977. By letter dated January 3, 1977 petitioner was informed that a new appointment to fill the position of town engineer had been made as of December 31, 1976. This was apparently the result of an economy effort instituted by the appellants. Petitioner has challenged the dismissal, arguing that he is a permanent civil service employee subject to dismissal solely pursuant to section 75 of the Civil Service Law. Appellants argue that petitioner’s appointment was for the definite period set forth in section 24 of the Town Law and that thereafter he was simply a holdover employee pursuant to section 5 of the Public Officers Law, subject to replacement at any time after his initial appointment expired. Without conducting an evidentiary hearing, Special Term found that petitioner had been improperly discharged. Great emphasis was placed upon the documentary evidence covering petitioner’s appointment and upon the philosophy that civil service positions are to be filled on the basis of merit and not on the basis of a "spoils” system. Special Term concluded that insofar as section 24 of the Town Law was inconsistent with section 75 of the Civil Service Law it must be disregarded because its enactment antedated that of the Civil Service Law. At the outset we note that there is no support in the record for a charge that appellants’ actions were motivated by anything other than a sincere desire to economize. As such, the reliance upon the importance of having a civil service system based upon merit was misplaced. It was further error to conclude that section 24 of the Town Law and the Civil
