Matter of Kearns v. Bd. of Education

Finch, J. The petitioners were licensed for the position of “ teacher clerk ” in New York city elementary schools. In or about 1921 they were appointed as teacher clerks and assigned to continuation schools. One of them, who was serving in the public schools, was transferred to a continuation school. In 1927, the Commissioner of Education issued a ruling that continuation schools were to be deemed secondary schools and of the same grade as high schools. Thereupon, a regular continuation school organization was set up by the Board of Education in its by-laws. These by-laws specifically provided for the position of “ clerical assistant ” in continuation schools, but omitted the position of “ teacher clerk.” The petitioners were then informed that in order to qualify for the position of clerical assistant in continuation schools, they would have to comply with the requirements set up and take an examination. By reason of their past service in the continuation schools, the written examination was waived as.to them, and they took an interview examination and a performance test. They were informed that this would entitle them to have their names placed on *64 the eligible list with the names of those derived from the open competitive examination, but that it would not entitle them to an appointment as clerical assistant in any but a continuation school. “ Therefore, persons entitled to exemption from the written examination for license as clerical assistant in continuation schools by virtue of continuation school service, should take the written examination if they desire to obtain a license as clerical assistant in day high schools, or in evening high, trade or industrial art schools, or if they believe that they can improve their prospective eligible list standing by taking the written examination.” After they had taken the interview examination and the performance test, the names of the petitioners were placed upon an eligible list for the position of clerical assistant along with the names of those who had taken the open competitive examination. Thereafter, the petitioners continued to perform the clerical work in the continuation schools where they had been prior to the examination. They were not, however, designated as clerical assistants on the payroll of the Board of Education, and did not receive the salary provided for clerical assistants. The eligible list for clerical assistants upon which their names appeared expired on January 30,1933, and the statute (L. 1933, ch. 146) purporting to revive this list was enacted in April, 1933. On April 5, 1935, the petitioners began a proceeding before the Commissioner of Education to require the Board of Education to make appointments from the eligible list of clerical assistants to the positions occupied by the petitioners. The Commissioner held that since continuation schools were to be considered as of high school grade, the positions should be filled by clerical assistants, and he directed that appointments be made from the eligible list. Shortly thereafter this Court held that the attempted revival of an expired eligible fist was unconstitutional. (Hurley v. Board of Education, 270 *65 N. Y. 275.) Because of this decision the Board of Education made no appointments from the expired eligible list upon which the petitioners’ names appeared. The petitioners then amended their petition and substituted a prayer for an order commanding the Board of Education to designate them as clerical assistants in continuation schools as of September 9, 1929, with all the emoluments and benefits thereof. The Special Term, by its resettled order, directed the Board of Education to designate the petitioners on all licenses, records and payrolls of the Board as clerical assistants in continuation schools as of April 5, 1935, with all the emoluments and benefits thereof, and to pay each of them a sum equivalent to the difference between the salary each should have received for the period commencing April 5, 1935, based upon the appointment of each of them as clerical assistants in continuation schools as of April 5, 1935, and the salary received by each of them in such employment since April 5,1935, with appropriate interest. ■ The Appellate Division reversed, holding that the petitioners were never appointed to the position of clerical assistant, and that, in the absence of a valid appointment, they could not be designated as incumbents even.though they performed the duties of the position. There can be no doubt that the petitioners were never appointed formally or otherwise to the position of clerical assistant. Nor can it be said that this was a mere technical omission which can be overlooked. That there was no intention to appoint them as clerical assistants is shown by the fact that they were never paid the salary provided for that position, and there was no provision for them as clerical assistants on the payroll of the Board of Education. To hold, despite this, that they should be deemed to have been appointed since they continued in the position and did the clerical work in the continuation schools, would amount to an evasion of the civil service *66 laws. These statutes provided that appointments in the competitive class are to be made from among those graded highest in- open competitive examinations, and that the appointment shall be from the first three persons on the appropriate eligible list. (Education Law, § 872 (5) [Cons. Laws, ch. 16]; see Civil Service Law, § 14 [Cons. Laws, ch. 7].) The petitioners’ delay in acting has created this situation and there is no escape from the statutory requirements. The petitioners were not the only ones on the eligible list. Among the seventeen at the head of the list there were eight names besides those of the petitioners. One of the petitioners headed the fist. But there are three other names before we come to the name of another petitioner. The petitioners now ask the court to designate them nunc pro tune to the title and salary to which they have never been appointed. Under these circumstances, to hold that the petitioners are deemed to have been appointed when they were in fact not so appointed, merely because they continued to do the work, would constitute a direct violation of the law. The order appealed from should be affirmed, with costs.