Healey v. Bazinet

Hill, P. J.

Petitioner-appellant seeks reinstatement as a police officer of the city of Glens Falls, N. Y. He took an examination April 26, was certified as eligible by the civil service commission June 7, appointed to the force as a special policeman August 5, 1935, and continued to serve until November 11, 1941, when he was removed by a resolution of the board of public safety. At the time of his examination and appointment, the charter of the city limited the force to one regular policeman for each fifteen *442hundred inhabitants, but permitted the board of public safety to appoint special policemen who possessed the powers and were required to discharge the duties of regular policemen. Special policemen, according to the charter, were removable at the pleasure of the board.

The Constitution of the State requires that appointments and promotions in the civil service of the State and of all the civil divisions thereof shall be made according to merit and fitness, and directs that the Legislature shall enact laws to provide for the enforcement of this section.” (State Const, art.' 5, § 6.) It was the purpose of the Constitution and the intent of the Legislature that there should be but one Civil Service Law in the State. (People ex rel. Fleming v. Dalton, 158 N. Y. 175.) It was made the duty of the officers of the State and of all civil subdivisions thereof to conform to and comply with the provisions of the law and any person employed contrary to its provisions or the rules and regulations adopted thereunder was not to be paid from the public treasury but by the officer or officers who made the irregular appointment. (Civ. Serv. Law, § 8.) Appointments are first made for a probationary term of three months. The retention of the appointee after such period is equivalent to a permanent appointment. (Rules for the Classified Civil Service, rule XII.) Petitioner took and passed an examination called by the civil service commission of the city of Glens Falls and was regularly appointed at the time earlier mentioned. The corporation counsel of the city corresponded with the secretary of the State Civil Service Commission, stating that the city wishes to change the status of these twelve special policemen [petitioner was one of these] to that of permanent policemen ” and expressed doubt that this could be done under section 14 of the law. The secretary replied, It is my opinion that the special officers who were appointed as indicated and have served continuously, have full civil service status so far as the Civil Service Law and the local Civil Service rules are concerned and that they may be included in the permanent force without further examination whenever your Charter provision permits larger number to be designated as permanent officers.” This was later confirmed as the opinion of the Civil Service Commission. Thereafter the board of public safety transferred nine of the special policemen to the regular force without examination or application by these officers, upon the assumption that the examination which they took, together with their appointment and service as special policemen, gave them such status under civil service as to justify this change. The board thereby adopted the construction given by the State Civil Service Commission, but only as to nine officers, *443and rejected- it as to petitioner by removing him from the force without notice or the preferment of charges, although his appointment as a special policeman antedates that of any of the nine appointed, one by a few months, the others by one or more years. It must be concluded either that the favored nine lacked civil service status qualifying them for appointment as regular policemen, and that, therefore, their appointments are illegal, or that petitioner has such status that he may be separated from the city service only in the manner provided by law as to an officer having civil service status, and not by the adoption of a resolution of the board, without notice or hearing.

At the time of petitioner’s original appointment, it was the obvious intention of the city authorities to place him and other special officers upon the regular force so nearly as that could be accomplished under the charter limitation as to number. Had there been a vacancy on the regular force, his appointment thereto would have been probationary which in time would have become permanent. When vacancies occurred through the amendment of the charter and the increase of the number of regular policemen, petitioner became a member of the force, and he could be removed only in the manner prescribed by the State Civil Service Law (§ 22).

The answer pleads that no examination was held for the position of “ special policeman.” It is not denied that petitioner passed the examination for appointment to the police force on June 7, 1935. The appointments as “ special ” policemen were to evade the limitation of the charter and he, like the nine favored ones, was appointed to the regular force, as was recognized concerning the latter.

The orders should be reversed on the law, with fifty dollars costs and disbursements, the prayer of the petition granted, petitioner reinstated, with payment of his salary from the time of the attempted separation from the service. There is no material issue of fact.

Bliss, Heffernan and Foster, JJ., concur; Crapser, J.,' dissents, in an opinion, and votes to affirm the orders appealed from.