77 N.Y.S. 223 | N.Y. App. Div. | 1902
Lead Opinion
The application of the petitioner in this matter for a writ of mandamus was denied at the Special Term, and from the order entered upon such denial this appeal is taken.
The petitioner, a veteran of the Union army in the late Civil war, was on the 6th day of December, 1898, appointed an assistant sergeant-at-arms of the council of the city of New Fork, pursuant to section 27 of the Greater New York charter (Laws of 1897, chap. 378). At the time of his appointment the municipal assembly consisted of the council and the board of aldermen (§ 17).
The papers before the court on this motion disclose the fact that the sergeant-at-arms and assistants are confidential employees or appointees. That persons holding such positions bear confidential relations to the bodies with which they are connected is a matter of common information. The municipal civil service commission of the city of Rew York has placed sergeants-at-arms in the noncompetitive list, ranking those positions as confidential, and while that is not conclusive of the subject, yet it furnishes the interpretation put upon the law by those authorized and required by the law to make the distinctions and classifications of those seeking appointment to office under the municipal government of the city of Rew Y ork.
For the reason that the position is a confidential one, the order appealed from should be affirmed, with costs.
Van Brunt, P. J., and McLaughlin, J., concurred; Laughlin, J., dissented.
Dissenting Opinion
In the month of December, 1898, the petitioner was appointed assistant sergeant-at-arms to the council, the upper house of th'e municipal assembly, at a salary of $1,000 per annum. He continued to perforin the duties faithfully and satisfactorily until the 1st day of January, 1902, when the council expired, the municipal assembly having been superseded by a board of aldermen. (Laws of 1901, chap. 466.) He is an honorably discharged soldier of the Union army and served in the war of the Rebellion. Due notice of this fact was given the board of aldermen which superseded the municipal assembly and to its president and clerk, together with a demand by the petitioner in due form that he be transferred, designated, assigned or appointed to the position of assistant sergeant-at-arms to the board of aldermen in accordance with his legal rights as such veteran. The matter was investigated by a committee of the board of aldermen, and, with knowledge of all the facts, including the petitioner’s claim as an honorably discharged soldier, the board refused to recognize his rights and thereafter appointed a sergeant-at-arms and five assistant sergeants-at-arins.
It is clear that if the office of assistant sergeant-at-arms is not a “ strictly confidential ” position the petitioner was entitled to be appointed. There were vacancies and they arose by the legislative dissolution of the municipal assembly and the creation of the board of aldermen. By section 27 of the Greater Hew York charter (Laws of 1897, chap. 378) as thus amended by chapter 466, Laws of 1901, the board of aldermen was expressly authorized to elect a sergeant-at-arms and such assistants “ as are needful to the ordei’ly conduct of its meetings.” Both by the Constitution of our State and section 21 of chapter 370 of the Laws of 1899 the petitioner was protected against removal without a hearing and for cause shown. Said section 21 further provides that if the position shall become unnecessary or be abolished for reasons of economy or otherwise such appointee or employee “shall not be discharged from the jiublic service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.” This section was amended by chapter 270 of the Laws of 1902, which took effect on the 29th day of March, 1902, so as to
The municipal civil service commission has placed the position of assistant sergeant-at-arms in the unclassified service, the positions in which are exempt from examinations; and that is doubtless where they belong under the law. (People ex rel. Martin v. Scully, supra.) The contention of the respondents that section 1543 of the charter as thus amended relates only to positions in the classified service is untenable. That part of it which requires the civil service commission to place the names upon the appropriate lists and certify them for reappointment, when called upon for an eligible list, undoubtedly relates only to the classified service, but the provision herein first quoted is general and relates to all existing positions whether in the classified or unclassified service. It is not very material, therefore, whether the petitioner’s rights depend upon the Civil Service Act or upon this provision of the charter, for in either event he is entitled to be transferred to a similar position when a vacancy arises. (Matter of Breckenridge, 160 N. Y. 103; Matter of Pratt v. Phelan, 67 App. Div. 349.)
The only question, therefore, would seem to be whether a strictly confidential relation exists between a sergeant-at-arms and the board of aldermen. That body consists of seventy-nine members and its sessions are expressly required by the charter to be held with open doors. (Revised .Greater Rew York Charter, §§ 18, 27,29, 31.) The rules of the board provide that the president shall assign the sergeant-at-arms and assistant sergeant-at-arms “ their respective duties and stations; ” that they are required to be in constant attendance at the sessions of the board and under the direction of the president to aid in enforcing order on the floor, in the gallery, lobbies and rooms adjacent to the aldermanic chamber, and to see that no persons
It is difficult to frame any general rule to define what is meant in this statute by the words “ strictly confidential.” It requires something more than the mere performance of official duties of a clerical nature under the direction of another, and the trend of the decisions is to the effect that to fall within the exemption on this ground the position must be one necessarily involving personal relations of' a secret nature between the appointee and the appointing power, that it would be injurious to the public interests to have divulged, or requiring skill, judgment, trust and confidence and involving either the delegation of duties or financial responsibility for their faithful discharge. (People ex rel. Drake v. Sutton, 88 Hun, 173; People ex rel. Conway v. Barker, 14 Misc. Rep. 360 ; Chittenden v. Wurster, 152 N. Y. 345; People ex rel. Inebriates' Home v. Comptroller, Id. 399; People ex rel. Sears v. Tobey, 153 id. 387;
In my opinion an assistant sergeant-at-arms does not hold “a strictly confidential relation to the appointing officer.” If there be anything in the contention with respect to executive sessions, it is manifest that the presence of the sergeant-at-arms would be sufficient for all purposes, and if there be any confidential relations between the board of aldermen and any of these officers the ser-' geant-at-arms would be the one.
For these reasons I think the petitioner was entitled to a peremptory writ of mandamus reinstating and transferring him to the position of assistant sergeant-at-arms to the board of aldermen.
Order affirmed, with costs.