39 Misc. 2d 82 | N.Y. Sup. Ct. | 1963
By this article 78 proceeding, the petitioner seeks to compel the respondents to fill, by competitive examinations, the positions in the New York City Police Department, of Deputy Inspector, Inspector, Commanding Officer (Detective Division), Deputy Chief Inspector, Assistant Chief Inspector, Supervising Assistant Chief Inspector, Chief of Staff, Chief of Detectives and Chief Inspector. It is petitioner’s claim that these positions should not be filled by the Police Commissioner by supervisory designation from the rank of Police
Petitioner is a retired Police Captain. He rose in the ranks by promotional examination. He argues that merit and fitness are the criteria for promotion in civil service, that out-of-title work is proscribed and that an incumbent may not be permitted to perform any duties unless he has been previously tested to perform such duties. He further contends that the higher salaries and duties of the afore-stated positions above the rank of Captain constitute a promotion and therefore should only be made after competitive examination. Petitioner cites for his support section 6 of article V of the New York State Constitution, which provides that “ 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 ”, Moreover, that subdivision 8 of section 52 of the Civil Service Law provides that no person shall be promoted to a position or title involving qualifications different from or higher than those required for the position or title held by such person, unless he has passed the examination. Subdivision 9 of said section 52 provides that an increase in the salary beyond the limit fixed for the grade “ shall be deemed a promotion.” Subdivision 2 of section 61 proscribes out-of-title work. The issue is therefore drawn by petitioner that since all of the positions above the rank of Police Captain involve duties different and higher than those required or fixed for Police Captain, that they should be filled by promotional examination; that any advancement above Police Captain is a promotion which violates the State Constitution and Civil Service Law. Petitioner cites for support the cases of Matter of Williams v. Morton (297 N. Y. 328); Matter of Carolan v. Schechter (5 Misc 2d 753, affd. 8 A D 2d 804, affd. 7 N Y 2d 980) and others. I am also aware of and studied the recently decided case of Matter of Niebling v. Wagner (12 N Y 2d 314) by the Court of Appeals which is decided upon the holding made in the Carolan case (supra).
However, I am constrained after a study of the cited cases, and the issues presented in the instant case, that the petitioner’s position and cited cases are inapplicable to the particular facts here. The petitioner’s contention, in the ease at bar, that the designation of Police Captain to the higher ranks is tantamount to a promotion to the performance of illegal or out-of-title work, is controverted and negated by section 434a-13.0 of the Admin
“ § 434. Commissioner; powers and duties.—
“ a. The commissioner shall have cognizance and control of the government, administration, disposition and discipline of the department and of the police force of the department.
‘ ‘ b. The commissioner shall be the chief executive officer of the police force. He shall be chargeable with and responsible for the execution of all laws and the rules and regulations of the department. ’ ’
The Bules and Begulations of the Police Department (now part of the Bules and Procedures) provide:
“ 1. The Police Commissioner shall have cognizance and control of the government, administration, disposition and discipline of the Police Department, and of the Police Force of said department.” * * *
‘ ‘ 402. Unless otherwise provided in these Bules and Begulations, a member of the force shall be detailed or assigned as directed by the Police Commissioner only.”
In addition to the afore-stated, the city’s right to specifically designate Police Captains to perform functions of the ranks above that of Police Captain is specifically provided in section 434a-13.0 of the Administrative Code, as follows: “ Promotions.— a. Promotions of officers and members of the force shall be made by the commissioner, as provided in charter section eight hundred thirteen, on the basis of seniority, meritorious service and superior capacity, as shown by competitive examination, but a detail to act as inspector, or to service in the detective bureau, as hereinafter provided, shall not be deemed a promotion.” (Italics added.)
Going on to subdivision c of the same section, we find that the Commissioner is empowered to “ in the exercise of his discretion, from time to time, detail nineteen captains and so many others as the board of estimate upon the recommendation of the mayor and the commissioner may authorize to act as inspectors, with the title, while so acting, of inspectors of police and at his
Experience has proven that innumerable positions have been placed in the exempt class because these positions do not lend themselves to competitive testing. To that end, because in certain categories of positions examinations are impracticable, or undesirable from the viewpoint of public interest, exempt appointments are made permitting the appointing authority to remove incumbents at will. However, in the instant situation, the New York Civil Service Commission did not have to determine that it was impracticable to hold examinations because the Legislature made that determination in the plain language set forth in the Administrative Code. In other instances has the Legislature recognized the impracticability of further examinations for these higher police ranks. In the Wicks Act (L. 1939, ch. 927), the Legislature provided that employees of privately operated subways acquired by the City of New York, should be continued in the service of the Board of Transportation and classified in the noncompetitive class. The constitutionality of this legislative determination, that competitive examination was not practicable in this instance, was sustained (Matter of Felder v. Fullen, 27 N. Y. S. 2d 699, affd. 263 App. Div. 986, affd. 289 N. Y. 658 [1942]), Further evidence of the Legislature’s recognition of the impracticability of further examinations for these higher police ranks, is reflected in the editorial comment of the New York Times as far back as 1906 where the following is stated: “We think that all will agree that it would immensely strengthen the hands of a resolute Commissioner if he could reduce the higher officers, the Inspectors, to the rank of Captain, not necessarily as a penalty, but at his discretion, for the good of the service. The rational, logical, inevitable supplement to this power should be that of detailing Captains, at discretion, to act as Inspectors, with pay and rank accordingly while the detail holds,” (Emphasis mine.)
In the New York Sun of November 26, 1906, the following appeared: “An honest and capable man in the office of Commissioner of Police would have comparatively little difficulty in managing the men under him if he had the power to ‘ hire and fire ’ his subordinates.”
In a presentment handed down by the November Grand Jury (1906) in General Sessions, there was contained the following recommendation: “ The law should also be amended to empower the Commissioner of Police to abolish the Detective Bureau as
In an editorial from the then New York Globe (Dec. 15, 1906) the following was said: “It will be admitted, we think, that the late George William Curtis was a devoted friend of Civil Service reform and was not in favor of legislation that would break down the system. Over and over again Mr. Curtis opposed taking away from executive officers discretion concerning the removal of subordinates. Yet proposals partially to restore this discretionary power to the police commissioner of New York are attacked as treason to the merit system.” (Emphasis mine.) When the law was passed which placed the New York Police Department under civil service rules this difference between appointment and removal was not sufficiently recognized. It was assumed that if appointment should only be for merit, removal should not occur except for proved demerit. So, in effect, control of the department in a most vital respect was taken away from its chief. The public held him responsible for the conduct of police affairs but unless he could prove a specific offense to the satisfaction of a reviewing court, he could do nothing toward enforcing discipline except to lecture the men and, as a last resort, transfer them from a precinct they liked to one they did not like.
The editorial criticism of that day reflected the public interest that a Police Commissioner be given arbitrary power, if need be, to reduce incompetent or dishonest Inspectors back to the rank of Captain and that the Commissioner be afforded his choice and discretion in those areas of executive conduct which call for close liaison between a Commissioner and his top echelon. Experience has proved the need for the changes that were made to effect this need as enacted into the laws hereinbefore stated, which clearly grant the Police Commissioner the exclusive power to designate Police Captains to higher ranks without further competitive examination. The history of these positions supports the legislative mandate that it would be impracticable to require examinations or to restrict the Police Commissioner’s power to select or demote designees in the exercise of his discretion.
Petitioner’s arguments that the increase of pay, which goes with such designations, is illegal and violative of law, are untenable. The payment of additional compensation to Police Captains who have been designated and detailed to positions which call for the performance of higher services, within the ranks challenged by petitioner, does not constitute an unlawful promotion. This is so because Police Captains occupy imgraded
The term ‘ ‘ Rank ’ ’ denotes ‘ ‘ the order or standing of a position with reference to the degree of its responsibilities ” (rule I, par. 1.10). The term “ Grade ” denotes “ the order or standing of a position with reference to the full-time annual compensation attaching to it ” (rule I, par. 1.11). The position of Police Captain is ungraded. Accordingly, since there is no salary limit, there cannot be a salary increase beyond the “ limit fixed for the grade.” Under such circumstances, the payment of higher salaries, as encouragement to employees performing duties of a more onerous and important nature than those performed by others, does not constitute a promotion (Matter of Mandle v. Brown, 5 N Y 2d 51; Matter of Amann v. Finegan, 253 App. Div. 364; People ex rel. Stokes v. Tully, 108 App. Div. 345).
By paragraph 10.4.1 of section IV of rule X of the Civil Service Rules, it is provided that “ The service, titles and grades, if graded, of positions in the competitive class subject to this rule are as follows # * *: The Police Service, Patrolman, Assistant Superintendent of Telegraph, Sergeant, Surgeon, Lieutenant, Captain, Veterinarian, Superintendent of Telegraph.”
Only the service and titles are listed. Nothing is stated to indicate grading. Indeed, there is confirmation of the absence of grading. Accordingly, I conclude that petitioner here has no basis for his argument either that the position of Police Captain is graded or that additional compensation may not be granted, because subdivision a of section 434a-10.0 of the Administrative Code provides that the salaries of officers and members of the police force “ shall be as follows ” for Captains. The latter provision only refers to the minimum of the salary but does not delimit the scope of the salary. Section 67 of the New York City Charter confers upon the Board of Estimate the power to fix salaries “ except as otherwise provided in this charter or by statute ”. Administrative Code section 434a-10.0 modifies this broad power, but only to the extent of imposing a minimum. So that it is manifest that the statute is designed to
Accordingly, in light of the afore-stated facts and applicable law, I am of the ultimate determination that petitioner’s position here is untenable. The application is denied and the petition is dismissed.