Clare v. Silver

Nolan, P. J.

(dissenting). Section 10 of the Civil Service Law directs the Civil Service Commission to make rules, subject to the approval of the Governor, for the classification of the offices, places and employments in the classified service of the State and of the cities and civil subdivisions, for appointments and promotions therein and examinations therefor, and to amend such rules from time to time. The rules of the Civil Service Commission have the force and effect of law. (Civil Service, Law, § 6, subd. 1.) Pursuant to this statutory authority, appellant Civil Service Commission undertook a classification survey of all of the positions in the office of the District Attorney of Kings County. The authority of the commission to make the survey and, as a result thereof, to reclassify the positions is not disputed in this proceeding.

*380The record discloses that prior to the reclassification there were in the District Attorney’s office 11 positions, each denominated as county detective. Four of these positions were in the exempt class including the position of which respondent was the incumbent. The commission determined that not one of the positions so designated required or involved substantially the full scope of the duties and responsibilities provided for the position of county detective under section 938 of the County Law. Seven of those positions, involving partly detective and partly investigative work, were reclassified to the title of detective investigator. Three were otherwise reclassified and one, in the process serving department, held by respondent, was reclassified to the title of process server. Respondent, for almost seven years prior thereto, had performed duties which consisted of serving legal papers and locating witnesses in New York and Bronx Counties, and he did not contend that he had been, or was at that time, assigned to any other duties of a different nature. At the same time the positions of two employees of the County Court bureau of the office, denominated respectively as investigator and confidential attendant, were reclassified to the title of detective investigator. We must assume, in the absence of evidence to the contrary, that the incumbents of those positions were performing, prior to the reclassification, substantially the same duties as those previously performed under the title of county detective and now performed under the new title of detective investigator by the seven former county detectives who are now designated as detective investigators. All the positions, classified under the title detective investigator, and that which respondent occupied, reclassified under the title process server, were given competitive status.

The reclassification, and the change in the name of the positions formerly held by respondent and the other county detectives, did not, in our opinion, abolish that office or position, but preserved it under a changed classification and under different titles. Seven of the former county detectives, and two other employees of the District Attorney, are performing the same duties as those which they previously performed, under the title detective investigator. Respondent is performing precisely the same duties as those which he has performed for many years, under a new title, process server. All that has been effected in respondent’s case is a reclassification of the position of which he is, and was, the incumbent from the exempt to the competitive class, and a change in the title of the office from that of county detective to that of process server. Con*381cededly, respondent’s salary has not been reduced, and although it may be that the incumbents of the positions designated as detective investigator, may be able, through the process of examination and promotion, to achieve ultimately a slightly higher salary than that which respondent may obtain, by the same process, it appears from the record that respondent may be able, through such process, to obtain a higher salary than that which he could have obtained under the prior designation of his position as that of county detective. Although his duties as process server are more restricted than those which could have been assigned to him as county detective, and may be different from those assigned to the detective investigators, it is apparent that his duties could have been, and were, so restricted prior to the reclassification. Respondent has not been removed from the position which he held, within the meaning of section 22 of the Civil Service Law, nor has he been deprived of any vested rights by means of the reclassification complained of.

Respondent had no vested right in rules of the commission as they formerly existed, either with respect to the exempt status of his position or with respect to its title. The jurisdiction of the commission in the premises is prescribed by statute and its action may be set aside by the courts only if such action is palpably illegal, or on proof that it was without rational basis and wholly arbitrary. (See Matter of Hecht v. Kern, 178 Misc. 571; Matter of Weeks v. Kraft, 147 App. Div. 403; Matter of Kornbluth v. Reavy, 261 App. Div. 60; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Meenagh v. Dewey, 286 N. Y. 292.) The record does not disclose any illegality in the reclassification nor does the reclassification itself appear to have been arbitrary or capricious. 17o valid complaint may be made, therefore, as to a change in the rules, or as to the action of the appellants Silver and Beame pursuant thereto.

If it be assumed that the effect of the reclassification and change in title of the positions in the District Attorney’s office was to abolish the position of county detective of which respondent was the incumbent, he has, nevertheless, no valid complaint. There is a complete absence of proof in the record that there was a vacancy in the position of detective investigator to which respondent could be transferred or that he had any right to be transferred to that position in preference to any of the present incumbents. On the record presented it must be held that if respondent’s position was abolished, his only right under section 22 was to be transferred to such position as he *382might be fitted to fill, at the same compensation which he had received. (Cf. Matter of McNamara v. Holling, 282 N. Y. 109; Matter of O’Donnell v. Sinnott, 266 App. Div. 176, 177.)

The order should be reversed and the proceeding should be dismissed.

Ughetta and Kleinfeld, JJ., concur with Murphy, J.; Nolan, P. J., dissents and votes to reverse the order and to dismiss the proceeding, in opinion in which Wenzel, J., concurs.

Order affirmed, with $10 costs and disbursements.