305 N.Y. 221 | NY | 1953
Lead Opinion
In April, 1949, all fifteen of these petitioner were, without notice or hearing, removed, by order of respond ent State Civil Service Commission, from their respective pos: tians in the classified civil service of the City of Lackawanm They had been appointed to those posts (as police matroi police lieutenants, fire department lieutenants and fire captains on various dates in 1945,1947 and 1948, after successfully pass ing written, competitive civil service examinations held by th Lackawanna Municipal Civil Service Commission in 1944, 194 and 1946. All the petitioners had previous service (som for many years) prior to those examinations and appointment: in the same departments of the Lackawanna municipal goveri ment. The present proceedings are brought, under article 7 of the Civil Practice Act, for mandamus type orders reinstatin the petitioners in their positions.
The answer of the commission sets forth its reasons for pet tioners’ removal. It tells us that, in conducting an investigatio (under Civil Service Law, § 11, subd. 6) of the Lackawann Municipal Civil Service Commission, it found (see same se< tian, subd. 7) that the examinations which these petitionei had passed were not practical or sufficient tests of capacity an fitness for the several positions to which they were latí appointed. Accordingly, says the commission, it exercised tl power given it by subdivision 7 of section 11 of the Civil Ser ice Law to “ rescind any examination or eligible list í cancel an appointment already made from a list so rescinded 5 Attached to the pleadings filed herein by the State commissic are the disputed examination questions, and the State commi sion’s conclusions as to their inadequacies. From other exhibí' similarly attached, it appears that the commission, in so co]
No trial of these proceedings was held by Special Term. That iourt held that no triable issue of fact existed, since the comnission had decided that the tests were not fair and adequate, md since the affidavits of petitioners’ experts established merely i basis for a difference of opinion as to that. Therefore, each Detition was dismissed. Thus, petitioners, with no showing of !ault on their parts, or fraud by anyone, are out of their jobs.
This truly extraordinary result is sought to be justified by section 11 (supra) which empowers the commission “ at any ime ”, by unanimous vote, to rescind any examination or eligi)le list and cancel any appointments made from a list so eseinded, the only limitation being that such action shall not >e taken on any ground other than that “ the provisions or mrposes of this chapter [i.e., the Civil Service Law] are lot properly or sufficiently carried out ”, there being a urther requirement of written specifications showing in what larticulars “ the provisions or purposes ” have not been tarried out. So reads subdivision 7, and it has been authoritaively held in other proceedings growing out of this same jackawanna civil service investigation (see Matter of Kaney v. New York State Civil Service Comm., 190 Misc. 944, affd. 173 App. Div. 1054, affd. 298 N. Y. 707), that the statute gives lersons appointed from lists later disputed no right to notice t hearing as to such dispute. The order which we are reviewag herein means, therefore, this: that any municipal employee, espite his good-faith passing of a competitive written civil ervice examination, and good-faith appointment from an approbate eligible list, may at any time thereafter lose his position f the commission, in an investigation in which the employee .as no part at all, decides that the examination he passed was ot a fair test of qualification for the particular employment. Ve do not deny that the Legislature could so enact, if it wished. 5ut, in view of the fundamental purposes of the Civil Service
Subdivision 7 of section 11 of the law allows examination rescission and list rescission and appointment cancellation, on one ground only, that is, that “ the provisions or purposes ” of the Civil Service Law ‘ ‘ are not properly or sufficiently carried out ”. Bead literally, that language would license the commission to wipe out examinations, lists and appointments in municipalities for any violation of any one of dozens of “ provisions ” in the law, and so would leave no permanence at all in any appointment in the civil service of any municipality. But statutes are not so construed, if construction so harsh,, unreasonable and disastrous can be avoided (see Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44). We think a meaning more fair, and less destructive, can readily be found. We hold that “ the provisions or purposes ” referred to in subdivision 7 are the prime, fundamental purposes of the Civil Service Law only, and that it must have been the legislative intent, at least as to appointments already made, that there could be no cancellation thereof, unless the examination had been so-obviously inadequate, or so completely unrelated to the duties of the position, as to be on its face a nullity. Only by such a construction can the integrity and permanence of municipal civil service and the rights of good-faith examinees and appointees be safeguarded.
Our conclusion that the Legislature never intended to confer on the State commission so sweeping a power to overrule the fifty-six municipal commissions is confirmed by the general statutory scheme which makes those municipal commissions largely autonomous. Subdivision 18 of section 20 of the General City Law empowers every city to create a municipal civil service and “ to make rules for the classification of the offices and employments in the city’s service, for appointments, promotions and examinations ”. Section 14 of the Civil Service Law, as to the competitive class, provides for examinations to be “ conducted by the state or municipal commission ” and requires that such examinations “ shall be practical in their
The dissenting Justice in the Appellate Division, who thought, as we do, that the statute could not fairly be applied in all its stark literalness, concluded that the courts should read into it a requirement that rescission or cancellation must be had within a reasonable time. We agree that such an interpolation should be made, but it would not of itself afford sufficient protection to appointees. All but one of the appointments here in question were, apparently, promotional within the same municipal department, but the statutory construction applied by the commission and the courts below would, if upheld by us, be available as against any appointee. A new appointee in the civil service of a city, who had, by accepting an appointment, burned behind him the bridge to an old job in private industry, would be little comforted by a proviso that his removal, without notice or hearing, from his city job, would have to be ordered within a “ reasonable time Our thought is that, to make this statute jibe with the general purpose, apparent throughout the Civil Service Law, of protecting civil service employees (see § 22, for instance) it must be read as referring to those examinations only which are so faulty as to be no tests at all. We cannot ourselves take on the role of examination experts, but we have looked at the questions on these rescinded examinations, and are satisfied that they are not so patently unrelated to the positions involved, as to bring into play the commission’s extraordinary subdivision 7 powers. This record, accordingly, shows that there is no more than a difference of opinion as to the quality and comprehensiveness of the respective tests. We hold that appointments made from lists resulting from competitive municipal civil service examinations cannot be nullified on such a mere balancing of expert opinions. On these papers, petitioners were entitled to the mandamus orders they prayed for.
The orders appealed from should be reversed, with costs in all courts, and the several proceedings remitted to Special Term with instructions to grant the relief prayed for.
Dissenting Opinion
(dissenting). Fifteen petitioners in five article 78 proceedings seek to annul a decision and order of the State Civil Service Commission rescinding City of Lackawanna civil service examinations and the eligible lists resulting therefrom, and canceling the appointments of petitioners from said lists. The examinations were for police matron, fire lieutenant, fire captain and police lieutenant, and were given between 1944 and 1946. Petitioners passed such examinations as were given them, and in due time were appointed, the last appointment having been made on September 27, 1948.
In 1946 the State Civil Service Commission commenced an investigation of the affairs of the Lackawanna Municipal Civil Service Commission, following which extended hearings were held under subdivision 7 of section 11 of the Civil Service Law, upon notice and charges as therein required, resulting in the determination sought to be annulled, which has thus far been sustained. The basis of the State commission’s decision and order was that the examinations did not properly or sufficiently carry out the provisions or purposes of the Civil Service Law;
It would serve no useful purpose to discuss in detail each of the examinations. A brief reference thereto, however, will be illuminating. The police matron examination — the subject matter of the first proceeding — consisted of five simple questions. The first four were on first aid: “ #1 — What is fainting ? #2 — What is the treatment for fainting? #3 — What is sunstroke? #4 — What is the treatment for sunstroke?” These were evaluated at 60%. The sole remaining question, evaluated at 40%, was: “ Write a composition of forty words or more pertaining to the duties and responsibilities of a police matron.” The answer thereto was in the “ specification ” for this examination, as was indeed the case with the composition questions in all the other examinations. Petitioner was appointed within twenty-four hours after taking the examination.
In the fire lieutenant examination, a 60% credit was allowed for answers to three so-called “ service record ” questions, which asked for the commencement date of service, number of ilhiess absences in three years, and the number of charges against the candidate. Ten per cent was allowed for knowing where ten fire boxes were located; and 15% each for two compositions.
In the fire captain examination, the same first aid questions were asked as on the police matron examination, the same ‘6 service record ’ ’ questions as on the fire lieutenant examination, and a fifty-word composition was called for, rated together at 70%; fifteen general questions, rated at 30%, were also asked, the first of which was: “ Why is it so important that fire apparatus gets to the fire as soon as possible? ”
In the police lieutenant examination, 10% was allowed for substantially the same “ service record ” questions as were asked on the fire lieutenant examination, 30% for the correct spelling of eight simple words, such as “ kriminal ”, 20% for four elementary questions in arithmetic, one of which was: “ What part of an hour is 30 minutes? ” and likewise as to 20, 45 and 55 minutes; and 30% for six so-called practical questions, such as: “ What is a Barrister? ” and “ What is burglary? ” The examinations given under subdivision 5 of section
Our State Constitution (art. V, § 6) provides
To implement the constitutional mandate, the Legislature in 1944 (L. 1944, ch. 435) enacted subdivision 7 of section 11 of the Civil Service Law, which reads: “ Said state commission may at any time, by unanimous vote of the three commissioners, amend or rescind any rule, regulation or classification prescribed under the provisions of this section or rescind any examination or eligible list or cancel an appointment already made from a list so rescinded, provided that said state commission shall state the reasons for such action in writing and file the same and a certified transcript thereof as a public document as hereinbefore provided, and give an opportunity to the municipal civil service commissioners concerned to make a personal explanation and to file papers in opposition to such action. The said state commission, however, shall not take such action upon any ground
Pursuant to the clear and unambiguous power vested in it by subdivision 7 of section 11, the State commission, in its decision and order herein, made the determination here challenged on the ground that the examinations “ did not properly or sufficiently carry out the provisions or purposes of the Civil Service Law ”, and, more specifically, that they did not meet the requirements “ of Section 14 ” (now § 14, subd. 6) thereof “ and of Bules X and XXVII(6) ” of the Lackawanna Eules of Civil Service. Section 14 provided: “ The examinations shall be public and shall be practical in their character and shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed.” (Emphasis supplied.)
Having predicated its action on the enforcement of section 14, the State commission was clearly acting in strict compliance
Nor should we overlook the fact that, the People of the State, who mandated the constitutional provision, have rights in the public policy which it announces. We are here dealing with fire captains and fire and police lieutenants, as well as police matrons — responsible officers charged by law with the duty of protecting the lives, the liberty and the property of our people. It is a grave matter when such officers may be admitted to their positions on the basis of examinations which utterly fail to test their “ relative capacity and fitness * * * to discharge the duties ” appertaining thereto. The preservation of the merit system is not only in the best interests of civil service, but also affords the public that protection to which it is entitled under our Constitution. The inconveniences to petitioners flowing from the determination challenged must yield to the constitutional and statutory requirements that a valid appointment
We are told by the majority (p. 227) that “ Nowhere in any statute or rule (except in § 11, subd. 7, supra) do we find any permission or requirement for review by the State commission of a municipal commission’s examinations and certifications.” Is not one enactment sufficient? Must it be multiplied to be effective ?
The fact that petitioners have already been appointed does not preclude the State commission from invalidating the appointments, for subdivision 7 of section 11 expressly provides that the commission may “ cancel an appointment already made ”, (Emphasis supplied.) (Matter of Kaney v. New York State Civil Service Comm., supra.) Petitioners are not being deprived of any vested right because if, as found by the State commission, these examinations failed to carry out the provisions of section 14, then each of the petitioners failed to pass a requisite examination. The effect is the same as if there had been no examinations; the appointments were therefore invalid and conferred no tenure on petitioners, irrespective of good faith. (Palmer v. Board of Educ., 276 N. Y. 222, supra; People ex rel. Hannan v. Board of Health, 153 N. Y. 513, 519-520.)
It may not be said, as a matter of law and on the record before us, that the commission was not justified in finding that the provisions of section 14 were not being obeyed. The examination questions speak eloquently for their own inadequacy. A comparison of the duties listed in the specifications with the subject matter of the examinations likewise establishes their utter deficiency. Moreover, the testimony of the commission’s two well-qualified experts in the field of preparation and grading of civil service examinations was comprehensive arid specific and clearly supported the commission’s findings, even when considered in the light of the affidavits of petitioners ’ experts, which were general in nature. The commission’s findings in each case were likewise clear and definite, and in accord with the statute.
In addition to failing to meet the standards- enunciated in section 14, there is a further basis for rescinding the fire captain and fire lieutenant examinations taken respectively by peti
It is urged that the State commission has been guilty of loches. The short answer thereto is that subdivision 7 of section 11 specifically provides that the State commission may take the action authorized thereunder “ at any time ”. (Emphasis supplied.) Moreover, these examinations were given between 1944 and 1946. Appointments were made from 1945 until as late as September 27,1948. The commission’s investigation was already under way in 1946, and notice of charges was served upon the Lackawanna commission in 1947. Between that time and the decision and order of the State commission on April 12, 1949, it was confronted with litigation arising out of examinations given by the Lackawanna Municipal Civil Service Commission, two of which reached the appellate courts (Matter of Kaney v. New York State Civil Service Comm., supra; Matter of Conway v. Kaney, 274 App. Div. 849, appeal dismissed 298 N. Y. 709, motion for leave to appeal dismissed 298 N. Y. 752). Indeed, in the commission hearings, the president stated: “ nor is there any attitude or disposition on the part of any member of this Commission to engage in a race with the Courts to make a determination of the proceeding ”. Thus it may not be said that the commission did not proceed with reasonable dispatch, consistent with their onerous responsibilities, the numerous issues involved,, and the necessity of protracted hearings.
The orders of the Appellate Division should be affirmed, without costs.
Dye and Fuld, JJ., concur with Desmond, J.; Conway, J., concurs in the result upon the dissenting memorandum of Piper, J., in the Appellate Di-vision; Froessel, J., dissents in opinion in which Loughran, Ch. J., and Lewis, J., concur.
Orders reversed, etc.
Reflecting very slight, immaterial amendments made in 1950.
