Kahn v. Becker

Per Curiam. Petitioner is counsel to the Board of Higher Education. His position is officially entitled Law Assistant, Grade 4, for which there is no maximum salary. On February 28, 1966, the board recommended that the petitioner’s salary be increased from $17,500 to $19,350 per annum. Respondent, the Budget Director, submitted the proposal to the Mayor with the recommendation that it be not approved. And it was not. Petitioner, by this article 78 proceeding, seeks to compel respondent Budget Director to issue a certificate as of March 10, 1966437 to the effect that his salary has been adjusted at the rate of the new figure. Special Term has awarded petitioner the relief requested. There is no question but that the Board of Higher Education in its appropriation has the funds to meet the increase granted. The issue here is whether the salary raise can be effectuated without the Mayor’s approval. Specifically, the question is whether that approval is required by statute. Section 6214 of the Education Law provides that salary schedules in instituions under the jurisdiction of the Board of Higher Education shall be no lower than those established and in effect on January 1, 1965. There then follows a list of 15 positions in the service of the board, in which legal assistants are not included. Subdivision 16 is headed: “ Administrative employees.” It contains four groups. The first three do not include legal assistants. Group IV reads: “ Such other administrative positions now existing and such other administrative positions as the board of higher education may establish from time to time and at such salary and salary schedules as said board of higher education may establish with the approval of the mayor of the city of New York. ’ ’ There follow 11 other subdivisions referring to positions none of which includes counsel or legal assistant. If the position of counsel is not included in 11 such other administrative positions,” it appears nowhere in the elaborate list of positions under the jurisdiction of the board. And the budgets submitted by the board have always, from 1947, included the position of counsel in the group of administrative employees, together with such other positions not specifically mentioned, as its accountant, architect and engineer. Petitioner claims that Group IV is meant to apply to clerical assistants only and to allow for the creation of clerical and like positions not in existence at the time of the passage of the section. Petitioner has submitted proof that the section was inspired by litigation involving clerical positions. But the wording of the section providing not only for positions which might thereafter be created, but existing positions not elsewhere provided for, indicates that the Legislature went beyond what may well have been the motivating need for the legislation. It would appear that section 6214 intended to cover all positions under the jurisdiction.of the board, from college presidents to the lowest rungs on both the teaching and nonpedagogic staffs. There is absolutely no reason why such professional employees as physicians and dentists should be covered by the statute and lawyers omitted. [438] The sole distinction between positions specifically mentioned and those in Group IV is that for the former the salary orginally fixed must be approved by the Mayor and thereafter annual increments are automatic, whereas in the case of others the board may fix the starting salary anywhere between the starting minimum and the maximum and any increase is subject to the Mayor’s approval. Flirthermore, if it be argued that petitioner’s position is not included in Group IV, and concededly it is not mentioned elsewhere in the statute, it is difficult to see where the board gets any authority to create or fill the position. The board’s power derives from subdivision 5 of section 6202, enabling it to establish positions and fix salaries. Section 6214 covers: “ Salary schedules in certain public institutions of higher learning.” It does not purport to cover certain salaries only but all salaries for positions in those institutions. The general power granted by section 6202 is limited as far as the institutions included are concerned, by the provisions of section 6214. The judgment should be vacated and the petition dismissed on the law, without costs to any party as against the other.