198 Misc. 123 | N.Y. Sup. Ct. | 1949
This is an application of John P. Gunning, the petitioner, for an order under article 78 of the Civil Practice Act against the Buffalo municipal civil service commission and the Buffalo commissioner of fire, directing the commission forthwith to rescind the certification of the so-called eligible list for the position of P-marine fireman (steam), department of fire (fire and passenger boat W. S. Grattan), containing the name of Joseph T. Gannon, and forthwith annul and rescind the promotional examination for said position and any list made in pursuance thereof; and directing the commissioner to refrain from making any promotion or appointment to the aforesaid position from the list containing the name of Joseph
On February 15, 1946, the petitioner was appointed to the said position of F-marine fireman, as a war emergency employee, and was continuously so employed until July 15, 1949. Joseph T. Gannon received a temporary appointment to a similar position of F-marine fireman in October, 1947, and continued as such until July, 1949. The petitioner is a veteran of World War II. Joseph T. Gannon is not a veteran.
On March 2,1949, the commission approved the announcement of the open, competitive examination. The notice was published and stated that there were two vacancies in the said position; that “ in the physical examination over-weight to the extent of 25 pounds or more will be cause for rejection.” Then followed standards to be observed in determining weight requirements; “ Subjects of examination and relative weights: Technical examination: 80%; Training and experience: 20%.”
On April 13,1949, the commission approved an announcement of a promotional examination, which applied to the same position and stated that there were two vacancies. Among minimum qualifications there was provided: “ Applicants must have been permanently and continuously employed in the Department of Fire in the E Grade or higher, for at least one year immediately preceding date of this examination, and must have had two years of experience in the firing of boilers; also, Temporary, substitute or war emergency employees are not eligible for this examination; also, Subjects of examination and relative weights; Technical examination: 90%; Seniority: 10%. ”
Joseph T. Gannon filed his application on May 4,1949, for the promotional examination. He had been working as a temporary employee in said position for approximately two years. He was the only person to apply for, take and pass said promotional examination. He received a grade of 93.77%.
On May 14, 1949, the open, competitive examination and the promotional examinations were held and the quesions in each were identical. Twenty-four persons applied for the open, competitive examination; twenty-two appeared for the examination and ten passed. The first three names to appear upon the open, competitive list were: Maurice J. O’Connor, Jr., disabled veteran, average 83.85%; John E. Eobb, veteran, 92.62% ; John P. Gunning, the petitioner herein, veteran, average 88%.
Section 6 of article, V of the New York State Constitution entitled “ Civil service appointments and promotions; veterans’ preference ” provides that appointments and promotions in the civil service throughout the State, 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, and in short provides for preference of a disabled honorably discharged veteran, regardless of his or her standing on the list, and further provides for a similar preference to honorably discharged veterans. However, such disabled members of the armed forces shall have been first preferred.
Section 15 of the Civil Service Law entitled: “ Exceptions from competitive examination” provides in part as follows: “ 1. Whenever there are urgent reasons for filling a vacancy in the competitive class and there is no list of persons eligible for appointment after competitive examination, the appointing officer may nominate a person to the state or municipal commission for non-competitive examination, and if such nominee shall be certified by such commission as qualified after such noncompetitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination, but such provisional appointment shall not continue for a longer period than six months, nor beyond the period of twenty days after the promulgation of an appropriate eligible list. However, such provisional appointment may, with the approval of the state commission, be extended for a further period not exceeding three months, upon a finding by the state commission that it has been impracticable to establish an appropriate eligible list within six months after such provisional appointment. Successive provisional appointments shall not be made to the same position.”
One of the arguments of counsel for the petitioner is that Gannon was not eligible for promotion because he could not be given credit for a provisional appointment since his term of provisional appointment exceeded the period allowed under the
The petitioner claims that the promotional examination was so framed as to apply only to Joseph T. Gannon and the promotional examination notice omitted the weight qualification wMch would have disqualified said Gannon. In my opirnon the examination was properly posted.
Rule 20 of the Rules for the Classified Civil Service of the City of Buffalo provides: “ 1. Vacancies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower grade in the department in which the vacancy exists. The Commission may, however, establish general promotional lists wMch shall not be certified to a department until after the promotional eligible list for that department has been exhausted. [For reasons to be set forth in its minutes, the Commission may open examinations to persons in two or more lower grades who shall have served for the required time in the lowest grade to which the examination is open.] ”
With the exception of the bracketed words the wording of rule 20 is exactly the same as in section 16 of the Civil Service Law.
If there were any other persons eligible to try the examination they were in no way precluded from so doing. The fact that only one tried it is no proof that it was framed for that one person.
I find nothing in the law which would have prevented the civil service commission from holding a promotional and open examination at about the same time. TMs was purely a discretionary matter resting with the commission. In the case of
In People ex rel. Caridi v. Creelman (150 App. Div. 746) the court in its opinion stated at page 749: “ The court can neither conduct nor supervise civil service examinations. It has been held that the action of civil service commissioners in making classifications, and making and amending rules, is neither reviewable by certiorari nor in a taxpayer’s action, and that the official acts of the commissioners are not judicial, in the technical sense, but are executive, ministerial or administrative. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; Slavin v. McGuire, 205 id. 84; Matter of Simons v. McGuire, 204 id. 253. See, also, People ex rel. Republican & J. Co. v. Wiggins, 199 N. Y. 382.) ”
It has been held by the courts of this State, including the Court of Appeals, in a number of cases that a court should be reluctant to interfere with the determinations of the civil service commissions and any interference will only be justified if such bodies act in the performance of their duties in an erroneous, arbitrary, unreasonable and capricious manner or abuse the discretionary power vested in them by law. The question in the instant case is whether or not the respondents went without the bounds of this rule in their functioning. The conduct and supervision of examinations was exclusively in the hands of the respondents. As previously stated I can find nothing in the law which precluded the commission from holding a promotional examination and an open examination at about the same time. In fact if only an open examination had been held it might be questionable as to why a promotional examination should not have been held. Section 16 of the Civil Service Law and rule 20 of the Buies for the Classified Civil Service of the City of Buffalo mandate promotions from a lower grade if practicable.
Under these requirements the test was whether or not in the judgment of the'commission Gannon showed indications of good health and freedom from disability defects. Apparently, the judgment of the commission was sound for the affidavits of the deputy fire commissioner states Gannon had not lost a day’s work on account of sickness since September 3, 1944. Unquestionably Gannon was a regular and permanent employee. His credit on the examination was given for prior service in the “ E ” grade. This the civil service commission had a right to do.
It may have been unusual to have had two examinations and if the eligibility of Gannon was not so apparent, it could well be viewed with suspicion. However, upon all the facts of the case, and in the light of the decisions of the courts of this State, I cannot see how the action of the civil service commission of Buffalo can be deemed erroneous, arbitrary, unreasonable or capricious or where there was an abuse of discretionary power.
Counsel for petitioner has stressed the angle of veterans’ preference, but that is beside the point. There has been no discrimination against the veteran petitioner. He was not eligible according to the qualifications promulgated by the commission for the promotional examination. If there had been no promotional examination he would have had a chance for an appointment. He may still have a chance for appointment in the future.
The petition is dismissed.