Ebling v. New York State Civil Service Commission

Desmond, J. In April, 1949, all fifteen of these petitioner were, without notice or hearing, removed, by order of respond ent State Civil Service Commission, from their respective pos: tians in the classified civil service of the City of Lackawanm They had been appointed to those posts (as police matroi police lieutenants, fire department lieutenants and fire captains on various dates in 1945,1947 and 1948, after successfully pass ing written, competitive civil service examinations held by th Lackawanna Municipal Civil Service Commission in 1944, 194 and 1946. All the petitioners had previous service (som for many years) prior to those examinations and appointment: in the same departments of the Lackawanna municipal goveri ment. The present proceedings are brought, under article 7 of the Civil Practice Act, for mandamus type orders reinstatin the petitioners in their positions. The answer of the commission sets forth its reasons for pet tioners’ removal. It tells us that, in conducting an investigatio (under Civil Service Law, § 11, subd. 6) of the Lackawann Municipal Civil Service Commission, it found (see same se< tian, subd. 7) that the examinations which these petitionei had passed were not practical or sufficient tests of capacity an fitness for the several positions to which they were latí appointed. Accordingly, says the commission, it exercised tl power given it by subdivision 7 of section 11 of the Civil Ser ice Law to “ rescind any examination or eligible list í cancel an appointment already made from a list so rescinded 5 Attached to the pleadings filed herein by the State commissic are the disputed examination questions, and the State commi sion’s conclusions as to their inadequacies. From other exhibí' similarly attached, it appears that the commission, in so co] [225] jluding, relied on the opinions of experts employed by the iommission. Attached to the petitions, on the other hand, are affidavits by five other experts, all of whom concur in the view ;hat the several examinations thrown out by the commission instituted fair tests of fitness for the public employments in piestion. No trial of these proceedings was held by Special Term. That iourt held that no triable issue of fact existed, since the comnission had decided that the tests were not fair and adequate, md since the affidavits of petitioners’ experts established merely i basis for a difference of opinion as to that. Therefore, each Detition was dismissed. Thus, petitioners, with no showing of !ault on their parts, or fraud by anyone, are out of their jobs. This truly extraordinary result is sought to be justified by section 11 (supra) which empowers the commission “ at any ime ”, by unanimous vote, to rescind any examination or eligi)le list and cancel any appointments made from a list so eseinded, the only limitation being that such action shall not >e taken on any ground other than that “ the provisions or mrposes of this chapter [i.e., the Civil Service Law] are lot properly or sufficiently carried out ”, there being a urther requirement of written specifications showing in what larticulars “ the provisions or purposes ” have not been tarried out. So reads subdivision 7, and it has been authoritaively held in other proceedings growing out of this same jackawanna civil service investigation (see Matter of Kaney v. New York State Civil Service Comm., 190 Misc. 944, affd. 173 App. Div. 1054, affd. 298 N. Y. 707), that the statute gives lersons appointed from lists later disputed no right to notice t hearing as to such dispute. The order which we are reviewag herein means, therefore, this: that any municipal employee, espite his good-faith passing of a competitive written civil ervice examination, and good-faith appointment from an approbate eligible list, may at any time thereafter lose his position f the commission, in an investigation in which the employee .as no part at all, decides that the examination he passed was ot a fair test of qualification for the particular employment. Ve do not deny that the Legislature could so enact, if it wished. 5ut, in view of the fundamental purposes of the Civil Service [226] Law, and the traditional legislative policy in this State of furnishing effective protection to civil service appointees, we cannot bring ourselves to the belief that the Legislature ever intended or foresaw an outcome like this one. Subdivision 7 of section 11 of the law allows examination rescission and list rescission and appointment cancellation, on one ground only, that is, that “ the provisions or purposes ” of the Civil Service Law ‘ ‘ are not properly or sufficiently carried out ”. Bead literally, that language would license the commission to wipe out examinations, lists and appointments in municipalities for any violation of any one of dozens of “ provisions ” in the law, and so would leave no permanence at all in any appointment in the civil service of any municipality. But statutes are not so construed, if construction so harsh,, unreasonable and disastrous can be avoided (see Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44). We think a meaning more fair, and less destructive, can readily be found. We hold that “ the provisions or purposes ” referred to in subdivision 7 are the prime, fundamental purposes of the Civil Service Law only, and that it must have been the legislative intent, at least as to appointments already made, that there could be no cancellation thereof, unless the examination had been so-obviously inadequate, or so completely unrelated to the duties of the position, as to be on its face a nullity. Only by such a construction can the integrity and permanence of municipal civil service and the rights of good-faith examinees and appointees be safeguarded. Our conclusion that the Legislature never intended to confer on the State commission so sweeping a power to overrule the fifty-six municipal commissions is confirmed by the general statutory scheme which makes those municipal commissions largely autonomous. Subdivision 18 of section 20 of the General City Law empowers every city to create a municipal civil service and “ to make rules for the classification of the offices and employments in the city’s service, for appointments, promotions and examinations ”. Section 14 of the Civil Service Law, as to the competitive class, provides for examinations to be “ conducted by the state or municipal commission ” and requires that such examinations “ shall be practical in their [227] character and shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined ”, etc. (see, also, Rules for Classified Civil Service, rule X). Nowhere in any statute or rule (except in § 11, subd. 7, supra) do we find any permission or requirement for review by the State commission of a municipal commission’s examinations and certifications. The dissenting Justice in the Appellate Division, who thought, as we do, that the statute could not fairly be applied in all its stark literalness, concluded that the courts should read into it a requirement that rescission or cancellation must be had within a reasonable time. We agree that such an interpolation should be made, but it would not of itself afford sufficient protection to appointees. All but one of the appointments here in question were, apparently, promotional within the same municipal department, but the statutory construction applied by the commission and the courts below would, if upheld by us, be available as against any appointee. A new appointee in the civil service of a city, who had, by accepting an appointment, burned behind him the bridge to an old job in private industry, would be little comforted by a proviso that his removal, without notice or hearing, from his city job, would have to be ordered within a “ reasonable time Our thought is that, to make this statute jibe with the general purpose, apparent throughout the Civil Service Law, of protecting civil service employees (see § 22, for instance) it must be read as referring to those examinations only which are so faulty as to be no tests at all. We cannot ourselves take on the role of examination experts, but we have looked at the questions on these rescinded examinations, and are satisfied that they are not so patently unrelated to the positions involved, as to bring into play the commission’s extraordinary subdivision 7 powers. This record, accordingly, shows that there is no more than a difference of opinion as to the quality and comprehensiveness of the respective tests. We hold that appointments made from lists resulting from competitive municipal civil service examinations cannot be nullified on such a mere balancing of expert opinions. On these papers, petitioners were entitled to the mandamus orders they prayed for. [228] Matter of Kaney v. New York State Civil Service Comm. (supra) is not controlling on us here. That was a prohibition proceeding wherein certain persons, theretofore appointed to municipal service positions in Lackawanna, sought to halt the State commission’s Lackawanna investigation, out of which these attempted rescissions and cancellations later arose. Prohibition was refused, since the statute (§ 11, subd. 7, supra) was construed, in that case, as neither requiring notice to appointees of such an investigation, nor permitting any such investigation to produce a result which would be binding on the appointees. Indeed, the Special Term opinion in Kaney (no opinion was written in this court or in the Appellate Division) said that, if any examinations, lists or appointments should be stricken down by the commission, the holders of the affected positions could later have their day in court in mandamus proceedings. The orders appealed from should be reversed, with costs in all courts, and the several proceedings remitted to Special Term with instructions to grant the relief prayed for.