Conlon v. McCoy

Steuer, J. P. This appeal, an article 78 proceeding against the State Administrator and the Administrative Board of the Judicial Conference, concerns two examinations. One is for the position of Assistant Court Clerk and the other for Senior Court Officer. As to the first, we agree with the conclusion and reasons stated in the opinion of Silvermau, J., below, and so much of the order is accordingly affirmed. The position of Senior Court Officer is included in respondent’s title structure. It is the grade immediately superior to Uniformed Court Officer. The specification contains this provision: ‘1 Qualifications: One year of permanent service as a Uniformed Court Officer.” So by respondent’s own rules, it appears that the only persons qualified for appointment to the position of Senior Court Officer are those who have served at least one year as a Uniformed Court Officer, and that these persons should be the only ones eligible to take an examination for appointment to the position. The examination under review was not so limited. While styled an “ open competitive examination,” it was not such in the strict acceptance of the term. It was limited to those having the requisite qualification of prior service and to members of the Bar of this State. Respondent has the authority and duty to administer the Unified Court System (N. Y. Const., art. VI, § 28). As regards nonjudicial personnel of the courts, it has succeeded to the authority formerly exercised by the State Civil Service Commission. In the exercise of that authority, it is required to act consistently with the Civil Service Law (Judiciary Law, § 212; Matter of Goldstein v. Lang, 16 N Y 2d 735, revd. on dissenting opn. below 23 A D 2d 483). A cardinal principle of such administration is that the administrative body is bound by its own rules (Mendelson v. Finegan, 253 App. Div. 709). Respondent does not dispute any of the above but instead seeks to bring its action in extending the eligibility requirements within its rules. It claims, firstly, that, having the power to fix qualifications, it could at any time change them. Though this is true, assuming that rights are not affected thereby, a rule respecting eligibility cannot be changed by announcing an examination with a different test of eligibility (cf. Matter of O’Brien v. Delaney, 255 App. Div. 385; also, cf. Matter of Barthelmess v. Cukor, 231 N. Y. 435, as to whether so doing is constitutionally interdicted). Respondent relies on its rule 15(b) of the Administrative Board’s Career Service Rules which, in providing for promotional examinations, says that the same shall be held where [282] “practicable.” Respondent points to a policy, indisputably desirable, to introduce lawyers into the career service of the courts. It is further alleged that, in order to accomplish this aim, it will be necessary to provide a place for them in the title structure from which they can advance by promotional examination through the various grades of clerks; and that the position of Senior Court Officer is an appropriate position for that introduction, as the necessity for service as a Uniformed Court Officer might discourage lawyers from entering the service. While all of this may be quite sound, it does not bring the action taken within the rule. Practicability, in the context of respondent’s rule, refers to the absence of eligibles or other difficulties which would prevent either the holding of an examination or the examination becoming effective (Matter of Cornehl v. Kern, 260 App. Div. 35, affd. 285 N. Y. 777). Here, the qualifications for the examination were broadened not because it was impractical to hold a promotional examination but because it was thought desirable to effect a change in policy. Special Term was not misled by any of the above, and concluded that the extension of eligibility was improper. But in an endeavor to both protect the rights of the eligibles and to carry out the purpose of the respondent, the court ordered that the list resulting from the examination should be administered as follows: vacancies in the position of Senior Court Officer should be filled first by the eligibles passing the examination, in the order of their grades; and when these had all received appointment, the lawyers, outside the service, who had passed the examination should then receive appointment. In effect, the list was made into two lists. Without questioning the Solomonic simplicity of this resolution, it is no more permissible than splitting the baby would have been eonscionable. A list cannot be fractured to overcome objections (see Matter of Barthelmess v. Cukor, supra, p. 444 et seq.). We conclude that there is no way to cure the defective notice except by declaring it void, with the inevitable consequence that the examination held pursuant to it suffer the same fate. The latter consequence is dictated not only by logic but by equitable considerations. The proper eligibles, the Uniformed Court Officers, were presented with an open examination in which they may well have doubted their ability to compete successfully." They have been deprived of, and should have, the opportunity to compete in an examination limited as required by law. The judgment should be modified on the facts and the law by striking the provisions as to the examination for Senior Court [283] Officer and vacating the notice for said examination and annulling the examination and any list promulgated in accordance with it, and the order otherwise affirmed, without costs.