Orlopp v. Stirpe

Judgment affirmed without costs. Memorandum: Petitioners are four former Wayne County correction officers, three hired in March 1990 and one hired in May 1990. They were all informed when they were hired that permanent employment depended upon the results of a Civil Service examination, which they took in April 1990. Two failed the examination, and two scored too low to be reached on the eligible list. All were terminated on July 23, 1990. They challenge the authority of respondent to subject them to Civil Service requirements, contending that they are Flaherty employees (see, Matter of Flaherty v Milliken, 193 NY 564). Flaherty has been effectively overruled by the amendment of New York Constitution, article XIII, § 13 (a), effective January 1, 1990, which deleted the provision exempting a county from responsibility for the acts of the sheriff (Thouhboron v New York State Dept. of Civ. Serv., 175 AD2d 443). Petitioners’ contention that they cannot be subjected to Civil Service requirements in the absence of enabling legislation implementing the constitutional change has no merit. They were appointed after the Flaherty distinction was overruled and with knowledge that permanent employment was subject to the results of a Civil Service examination. This case does not involve the rights of persons occupying Flaherty positions on January 1, 1990, when the constitutional amend [937] ment became effective. We need not determine whether enabling legislation is required as to them or whether the State Department of Civil Service properly invoked Civil Service Law § 45, an issue discussed in Thoubboron at Supreme Court (146 Misc 2d 853) but not raised on appeal. Petitioners’ contention that County Law § 652-a should be applied to the correction officer position lacks merit. By its terms, that statute concerns only the appointment and promotion of deputy sheriffs, and the record reveals a substantial difference between the positions of deputy sheriff and correction officer in Wayne County. Petitioners do not claim to be deputy sheriffs. The record fails to support petitioners’ contention that the classification of Wayne County correction officers was improper. The position was classified on April 2,1990, based on a generic description that respondent received from the State Department of Civil Service in January 1990, which was found adequate by the undersheriff. Administrative determinations concerning position classification are subject to limited judicial review and should be accorded great deference (Cove v Sise, 71 NY2d 910). All concur, except Callahan, A. P. J., and Balio, J., who dissent and vote to reverse in the following Memorandum.