OPINION OF THE COURT
In this transferred CPLR article 78 proceeding, the petitioner Cibella R. Borges seeks review and vacatur of a determination of respondents Robert J. McGuire (then New York City Police Commissioner) and Jamie A. Rios (Deputy Commissioner in Charge of Trials, NYPD) finding her guilty of charges arising out of her posing nude prior to becoming a police officer, and dismissing her from the police force on May 11,1983 pursuant to the Administrative Code of the City of New York § 434a-14.0.
Petitioner’s affiliation with the Police Department began in 1974 when, at the age of 17, she was employed part time by her neighborhood precinct as a typist and clerk. After graduating high school she attended John Jay College from September 1976 through February 1978, at which time she was appointed a Police Office Aide under the Federal Government’s CETA program, and in that position, taught typing and was a scheduling officer at the Police Academy. In June 1979 petitioner took competitive examinations for the civilian civil service position of Police Administrative Aide (PAA) and for Police Officer, and soon thereafter, she began experiencing health problems. In August 1979, a large cyst was found on petitioner’s right ovary. In September, an operation was performed to remove the cyst and half of the ovary. Petitioner passed both civil service examinations, and on November 16, 1979, she was appointed a PAA.
Meanwhile, petitioner’s physical problems worsened. A few weeks after her operation she began experiencing urinary pain so severe as to cause her to lose consciousness on one occasion, and she was advised by a physician at Bellevue’s emergency room that she had a very severe urinary infection. In December of 1979 petitioner’s personal physician found another large cyst on her right ovary and it continued to grow during the next several months. In the course of obtaining advisory opinions
Petitioner testified that she became depressed and withdrawn; she was afraid that she was going to die of cancer; that even if the newly discovered cyst was found to be benign she would never get married because of her inability to bear children. In early March, petitioner was told by her doctor that another operation was imperative, and could not be delayed much longer.
On March 28, 1980, petitioner was approached by Tony Currin, a photographer, who told petitioner she was beautiful, and that she would be a perfect model for the type of photographs he specialized in: pictures of nude female models for “girlie” magazines. Petitioner testified that it made her feel good to be perceived and appreciated as attractive. She posed for Currin, once on April 7 and again on April 22, 1980, the second session with another female model. Each session lasted for two or three hours. Petitioner was paid $150 for each session by the publisher of Beaver magazine, which had the right of first publication under an agreement with Currin. Petitioner signed releases explicitly prohibiting the use of her real name, but unlimited in time.
In July 1980, petitioner had an operation to remove the second cyst, which was found benign, but she was diagnosed as suffering from endometriosis, a condition wherein uterine lining is found in other pelvic organs, especially the ovaries, and characterized by cyst formation, adhesions and menstrual pain, which is treatable by chemotherapy. Some time in the latter part of 1980 (the record is not clear as to the date), petitioner passed her eye examination, but she was then disqualified because of her endometriosis. She thereupon undertook to persuade the Department’s Supervising Chief Surgeon to reevaluate her eligibility, and on January 16, 1981 she was successful in overturning the prior finding of medical disqualification. On January 25, 1981 petitioner resigned her civilian position as a PAA, and on January 6, 1981 she was sworn in as a police officer subject to the completion of a final investigation into her candidacy by Sergeant James O’Hara.
On July 27, 1982 the Department discovered that petitioner was the person identified as “Nina” in the then current issue of
“1. Said Police Officer Borges, Shield #11722, on or about April, 1980, while assigned as a Police Administrative Aide, did wrongfully and without just cause, engage in off-duty employment without preparing Off-Duty Employment Notice (P.D. 407-164).
“Administrative Guide 319-23 — Off-Duty Employment
“Section 75 — Civil Service Law
“2. Said Police Officer Borges did knowingly omit employment information when preparing department form P.A.15 (Investigation of Applicant Questionnaire).
“P.G. [Patrol Guide] 104-1, page 2, para. 3 — Conduct
“P.G. 104-1, page 1, para. 4 — Performance
“3. Said Police Officer Borges, on April 7th and April 22nd, 1980 did wrongfully and without just cause pose for licentious photos depicting simulated sodomy and/or masturbation and sign a release authorizing the unlimited and continuing use of said photos.
“P.G. 104-1, page 2, para. 3 — Conduct
“4. Said Police Officer Borges has wrongfully and without just cause brought discredit upon the Department in that she posed for licentious photos and signed a release authorizing the unlimited and continuing use of said photos for publication to wit:
“P.G. 104-1, page 2, para. 3 — Conduct”.
“a. The [police] commissioner shall have power, in his discretion, on conviction by him, or by any court or officer of competent jurisdiction, of a member of the force of any criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or any breach of discipline, to punish the offending party * * *
“b. Members of the force, except as elsewhere provided herein, shall be [disciplined] * * * only on written charges made or preferred against them, after such charges have been examined, heard and investigated by the commissioner, or one of his deputies”.
The threshold issue presented is whether the Department had jurisdiction to commence disciplinary proceedings against petitioner with regard to conduct that occurred prior to petitioner’s appointment as a police officer, and at a time when petitioner was a civilian employee of the Department in the competitive civil service, a position from which she had resigned long before disciplinary proceedings were commenced. A study of the governing statutory sections makes it clear that the Department lacked jurisdiction to commence disciplinary proceedings with regard to behavior occurring under the described circumstances, and that accordingly the determination of the Department, to the extent that it rested upon an adjudication of guilt with respect to specifications 1, 3 and 4, must be vacated. Indeed, it also appears clear that jurisdiction to address the issue raised by petitioner’s conduct under the described circumstances is vested exclusively in the Personnel Director of the City of New York under the provisions of Civil Service Law § 50 (4).
The disciplinary authority of the Department is derived from two statutory sections: (1) Civil Service Law § 75, which, as here relevant, confers jurisdiction on the Department to discipline civilian employees of the Department in the competitive civil service; and (2) New York City Administrative Code § 434a-14.0, which confers jurisdiction on the Commissioner to discipline “a member of the force”.
We find unpersuasive respondents’ contention that Civil Service Law § 75 confers authority on the Department to initiate disciplinary proceedings against a former civilian employee of the Department in the competitive civil service for alleged misconduct occurring during the course of that employment. We find no support for that proposition in the language of the statute. As here pertinent, section 75 (1) provides as follows: “A person described in paragraph (a) * * * of this subdivision shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.” Paragraph (a) in turn provides: “A person holding a position by permanent appointment in the competitive class of the classified civil service”.
Construing the statutory language in accordance with its plain meaning, it seems clear to us that the disciplinary authority conferred and regulated in Civil Service Law § 75 extends only to persons presently in the classified civil service, and does not extend to persons who had been in the classified civil service at some time in the past. (See, Matter of Pierne v Valentine, 291 NY 333.)
The cases relied upon by respondents in this branch of their argument are wholly inapposite, each involving a situation in which a disciplinary proceeding had been commenced against the civil service employee prior to his retirement. (See, Matter of Brooklyn Audit Co. v Department of Taxation, 275 NY 284;
Similarly unpersuasive is the contention that Administrative Code § 434a-14.0 conferred authority on the Department to institute disciplinary proceedings with regard to behavior of a police officer that occurred prior to that officer’s appointment to the force. The language of that section can scarcely be clearer in conveying its intent that the disciplinary authority conferred extends to behavior occurring while a person is “a member of the force”. Thus, the disciplinary authority extends to members of the force with regard, inter alia, to “neglect of duty, violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or any breach of discipline.”
Indeed, it is not entirely clear that respondents intended to claim that the Administrative Code confers general authority on the Commissioner to institute disciplinary proceedings with regard to conduct of police officers occurring before their appointment to the force. Rather, the underlying contention appears to rest upon the special circumstance that petitioner had been a civilian employee of the Department before resigning from that position in order to become a member of the force. That circumstance, it appears to be urged, gave rise to some undefined general disciplinary authority in the Commissioner, the source of which is not specified, that transcends the specific statutory grants of authority described above, and somehow authorizes the Commissioner to exercise disciplinary authority not specifically conferred by the controlling statutory sections. We are aware of no support for this proposition, which cannot be reconciled with the principle set forth in Matter of Wein (56 NY2d 758, supra), and violates the basic principle reaffirmed in Commissioner of Labor v Hinman (103 AD2d 886): “Since the jurisdiction of an administrative body or agency is limited by the powers granted by statute, any determination made without statutory power or in excess of such power is void”.
In this case the “appropriate municipal commission” is the Personnel Director of the City of New York, pursuant to Civil Service Law § 2 (4) which defines “municipal commission” as “the personnel officer of a city”, New York City Charter § 811 which provides that “[t]he personnel director shall have all the powers and duties of a municipal civil service commission provided in the civil service law,” and New York City Charter § 813 (a) (6), which empowers the personnel director to “revoke or rescind any certification or appointment by reason of the disqualification of the applicant or appointee under the provisions of the civil service law”.
In referring to Civil Service Law § 50 (4) and the clear guidance that it gives with regard to jurisdiction in the instant case, we do not mean to intimate that the conduct attributed to petitioner would have warranted her disqualification if known prior to appointment. That issue is not before us, and we express no opinion whatever with regard to it.
A different issue is presented by specification 2, which alleges that the petitioner “did knowingly omit employment information when preparing department form P.A. 15 (Investigation of Applicant Questionnaire)”, and asserted that such knowing omission was violative of “Patrol Guide 104-1, page 2, para. 3 — Conduct,” and “Patrol Guide 104-1, page 1, para. 4 — Performance.” Paragraph 3 in the above specification prohibits a police officer from engaging in “conduct prejudicial to good order, efficiency or discipline of the Department.” Paragraph 4, which appears to be inapplicable to the conduct embraced in the specification, requires police officers to “make accurate, concise entries in department records in chronological order, without delay, using black or blue ink.”
Petitioner testified that she did not consider those sessions to constitute employment. She further testified, without contradiction, that when the forms were first given to her, she and the other applicants present were told that “the Department wasn’t looking for every little item of employment * * * Just like they were not looking for everybody’s medical illness that you had that would not affect you. They were only looking for the kinds of employment where you were there for a long period, on an almost steady basis.”
It is true that Sergeant O’Hara testified that he reviewed each of the questions on the form with petitioner, and that in his opinion modelling sessions constituted employment of a kind that petitioner was required to include in the questionnaire. However, he did not testify that he gave any instructions to petitioner that would have conveyed to her his understanding of that which was embraced in the term “employment”. Indeed, he did not testify that his understanding of that which was required was the general understanding in the Department, or that there existed any instructional material that embodied his interpretation, or that would have provided any assistance to petitioner in understanding that which was required. Nor was any evidence introduced that contradicted, directly or indirectly, petitioner’s testimony as to the instructions in fact given to her and to other applicants at the time she received the questionnaire.
In view of our earlier determination as to jurisdiction, it is unnecessary for us to address petitioner’s arguments that charges 1, 3 and 4 were not supported by substantial evidence, and that the penalty imposed was shockingly disproportionate to the offenses alleged when considering petitioner’s favorable performance record with the Department, her emotional turmoil concerning her then existing health problems, and her belief at the time the posing took place that she would never be a member of the Department.
Accordingly, the determination of the respondents dated May 11, 1983, finding petitioner guilty of certain charges and dismissing her from the force should be vacated and annulled, on the law, without costs, and the petition should be granted to the extent of reinstating petitioner as a New York City police officer from the effective date of her suspension from duty, and directing respondents to pay petitioner back pay retroactive to that date. (See, Kaminsky v City of New York, 15 NY2d 500; cf. Picconi v Lowery, 36 NY2d 221; Matter of Scornavacca v Leary, 38 NY2d 583.) The matter is remitted to Special Term for a determination of the amount due petitioner.