
    In the Matter of Denis Dillon, as District Attorney of Nassau County, Appellant, v Nassau County Civil Service Commission et al., Respondents. In the Matter of Nicholas Stagliano, Appellant, v New York State Civil Service Commission et al., Respondents.
    Argued January 10, 1978;
    decided February 16, 1978
    
      POINTS OF COUNSEL
    
      Denis Dillon, Nassau County District Attorney (William C. Donnino and Steven R. Bernard of counsel), for appellant in the first above-entitled proceeding.
    The failure of civil service to classify the investigative positions in the office of the District Attorney as exempt, was arbitrary and capricious. (Chittenden v Wurster, 152 NY 345; Matter of Rooney v Rice, 274 NY 347; Matter of Foy v Schechter, 1 NY2d 604; People v Fielding, 158 NY 542; People v Selikoff, 35 NY2d 227; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Meenagh v Dewey, 286 NY 292; Matter of Friedman v Finegan, 268 NY 93; People v Robertson, 12 NY2d 355.)
    
      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for New York State Civil Service Commission and another, respondents in the first above-entitled proceeding.
    I. No right to relief was ever established against the State respondents. Moreover, any review of State action would be barred by the Statute of Limitations. (Young Men’s Christian Assn, v Rochester Pure Waters Dist, 37 NY2d 371; Matter of Baldwin v McCoy, 35 AD2d 1059; Rieder v State Univ. of N. Y, 47 AD2d 865, 39 NY2d 845; Merante v Burns, 47 AD2d 671; Matter of Paroli v Bolton, 57 Misc 2d 952, 35 NY2d 772; Matter of Allstate Ins. Co. v Stewart, 36 AD2d 811.) II. District Attorney’s investigators may be properly classified as "competitive” or "non-competitive” by local civil service authorities. (Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Paroli v Bolton, 44 AD2d 557, 35 NY2d 772; Matter of Grossman v Rankin, 54 AD2d 639; People ex rel. Schau v McWilliams, 185 NY 92; Matter of State of New York v King, 36 NY2d 59; Matter of Nigrone v Murtagh, 36 NY2d 421; Matter of Meenagh v Dewey, 286 NY 292; Matter of Holcombe v Gusty, 51 AD2d 868.)
    
      William Gitelman, County Attorney (William S. Norden and Natale C. Tedone of counsel), for Nassau County Civil Service Commission, respondent in the first above-entitled proceeding.
    I. Appellant’s inconsistent position in exempting the present investigators from his proposed reclassification clearly demonstrates a concession by appellant that the county respondent was correct in refusing to reclassify appellant’s investigators from the competitive to the exempt class. (Matter of Rooney v Rice, 249 App Div 124.) II. Respondent Nassau County Civil Service Commission’s resolution denying the District Attorney of Nassau County’s request for change of the jurisdictional classification of the investigator positions in the office of the District Attorney from competitive to exempt has a rational basis and should not be disturbed. (Matter of Mandle v Brown, 4 AD2d 283, 5 NY2d 51; People v Newschatz, 40 NY2d 935; Matter of Smith v New York City Police Dept., 56 AD2d 769; Matter of Detective Endowment Assn., Police Dept., City of N. Y. v Leary, 36 AD2d 289, 30 NY2d 577; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Clare v Silver, 4 NY2d 107; Matter of Schrader v Civil Serv. Comr. of Monroe County, 53 AD2d 210.) III. The county respondent’s determination in refusing appellant’s application, after hearing, which requested reclassification of certain investigatory positions in appellant’s office as "exempt” from "competitive” and "non-competitive” was lawful and proper. (People ex rel. Langdon v Dalton, 49 App Div 71, 163 NY 556; People ex rel. Schau v McWilliams, 185 NY 92; People ex rel. Moriarty v Creelman, 206 NY 570; Matter of Grossman v Rankin, 54 AD2d 639; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357; Matter of Ottinger v State Civ. Cerv. Comm., 240 NY 435; Matter of Andresen v Rice, 277 NY 271.) IV. The case of Holcombe v Gusty (51 AD2d 868) is not persuasive or conclusive and should not be followed. (Matter of Holcombe v Gusty, 86 Misc 2d 698, 51 AD2d 868; Matter of Grossman v Rankin, 54 AD2d 639; People ex rel. Schau v McWilliams, 185 NY 92; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Dillon v Nassau County Civ. Serv. Comm., 56 AD2d 930.)
    
      Samuel W. Eager, Jr., for appellant in the second above-entitled proceeding.
    The position of criminal investigator should be classified as "non-competitive” or "exempt”. (Chittenden v Wurster, 152 NY 345; Matter of Paroli v Bolton, 57 Misc 2d 952, 35 NY2d 772.)
    
      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer, 
      
      Samuel A. Hirshowitz and A. Seth Greenwald of counsel), for the New York State Civil Service Commission and another, respondents in the second above-entitled proceeding.
    District Attorney’s investigators may be properly classified as "competitive” by the Civil Service Commission. (Matter of Grossman v Rankin, 43 NY2d 493; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Paroli v Bolton, 44 AD2d 557, 35 NY2d 772; Matter of Meenagh v Dewey, 286 NY 292; Matter of Holcombe v Gusty, 51 AD2d 868.)
    
      David S. Ritter, Orange County District Attorney, amicus curiae, in the second above-entitled proceeding.
    It is not practicable to competitively examine for the position of criminal investigator in a District Attorney’s office. (Matter of Holcombe v Gusty, 51 AD2d 868; People ex rel. Flood v Gardiner, 157 NY 520.)
   OPINION OF THE COURT

Chief Judge Breitel.

In two separate CPLR article 78 proceedings petitioners seek to compel civil service reclassification of the positions of criminal investigators in the Nassau County and Orange County District Attorneys’ offices. The asserted ground in both cases is the confidential character of the work done by the investigators. Supreme Court granted judgment in favor of petitioners in both cases. The Appellate Division reversed and dismissed the proceedings. Petitioners appeal.

Petitioner Dillon, the Nassau County District Attorney, seeks to annul the determination of the Nassau County Civil Service Commission denying his request to reclassify criminal investigators in his office, for appointment purposes, as "exempt” instead of "competitive” and "non-competitive”. Petitioner Stagliano, a provisional appointee to the position of Criminal Investigator in the Orange County District Attorney’s Office, seeks to compel the State Civil Service Commission to reclassify that position as "non-competitive” or "exempt”.

The issue, common to both cases, is whether administrative refusal to reclassify all criminal investigators as exempt or noncompetitive lacks a reasonable basis, because the investigators act in a confidential capacity, and is therefore invalid.

In each case, there should be an affirmance. Petitioners’ bare contention that the confidentiality expected of criminal investigators makes competitive classification of any investigators impracticable is insufficient to invalidate the classifications made. Moreover, it cannot be said that exempt classification of criminal investigators in some District Attorneys’ offices, by that fact alone, makes competitive or noncompetitive classification in other offices arbitrary.

The Nassau County District Attorney’s Office, a relatively large office in a metropolitan county, employs numerous criminal investigators. The position of chief investigator and the two deputy chief investigator positions are classified noncompetitive, while the remainder of the positions are classified competitive by the Nassau County Civil Service Commission (see, generally, Civil Service Law, §§ 40-44; Matter of Gross-man v Rankin, 43 NY2d 493, 499). After a hearing held on June 17, 1976, at which District Attorney Dillon presented his case for reclassification, the commission declined to reclassify the positions, finding that the duties and level of confidentiality had "not appreciably changed” since the matter had last been considered in 1968-1969. Special Term, noting that the positions "are of a confidential and sensitive nature”, granted judgment to petitioner annulling the determination of the Nassau County Civil Service Commission. A unanimous Appellate Division reversed.

The Orange County District Attorney’s Office, a much smaller office, employs only three criminal investigators. The chief criminal investigator is classified "exempt”, while the senior criminal investigator and the criminal investigator are classified "competitive”. Petitioner Stagliano received a provisional appointment as criminal investigator on March 18, 1974. Subsequently, he took the competitive civil service examination for that position, and passed it, but did not score well enough to be eligible for permanent appointment. The Orange County District Attorney has not yet replaced Stagliano with anyone from the eligible lists submitted to him. On May 19, 1975, after the State Civil Service Commission denied the District Attorney’s request to reclassify the position as noncompetitive, petitioner brought this proceeding to direct the commission to place the position in the noncompetitive or exempt class. Special Term granted judgment to petitioner for reasons similar to those stated in the Nassau County case. The Appellate Division unanimously reversed.

Petitioners contend that the confidentiality of the position of criminal investigator should prevent classification of the position as "competitive”. Petitioner Dillon seeks an "exempt” classification for all of his investigators; petitioner Stagliano would be satisfied with a "non-competitive” classification. Petitioners contend that qualities of character, not easily tested by examination, are required of criminal investigators. The exceptional confidential nature of the position, in particular, is advanced as a justification for exempt or noncompetitive status.

An important factor to consider in deciding whether a position should be classified noncompetitive or exempt is whether it involves highly confidential duties (Matter of Meenagh v Dewey, 286 NY 292, 307; Chittenden v Wurster, 152 NY 345, 359). At the same time, the need for confidentiality, alone, does not mandate an exempt classification (Matter of Ottinger v Civil Serv. Comm., 240 NY 435, 442; cf. Matter of Simons v McGuire, 204 NY 253, 260). Other factors may and should be considered, and presumably were considered in these cases.

Classifications made by a civil service commission are subject only to limited judicial review. Only if the classification ' lacks any basis in harmony with the constitutionally mandated merit selection system for civil service employees may the determination be overturned by the courts in a proceeding in the nature of mandamus (see NY Const, art V, § 6; Matter of Grossman v Rankin, 43 NY2d 493, 503-504, supra; Matter of Rooney v Rice, 274 NY 347, 351-352; People ex rel. Schau v McWilliams, 185 NY 92, 99).

By way of caveat, it should be noted that these cases would be more difficult to resolve, even given the limited scope of judicial review in mandamus, had the respective Civil Service Commissions classified all criminal investigators "competitive”, or had petitioners challenged the refusal to classify even a small percentage of investigators as "exempt”. It may well be that a District Attorney is entitled to have one or, in a larger office, several investigators who enjoy his complete personal confidence. So, too, in the rare case, there may be a legitimate basis for creating a few positions for specialists outside the tenured career lines of appointment and promotion. There may be investigative tasks for which the trust of the District Attorney might be considered more important than any measurable objective characteristic.

But petitioners do not make such challenges. Hence, such challenges were not before the commissions and are not now before the court. Instead, petitioners assert, in effect, that classification of any investigators as competitive is arbitrary and capricious. Petitioner Dillon makes no distinctions among the many investigative positions in his office. Petitioner Stagliano contends similarly that even the lowest-ranking investigator in the Orange County office may not be classified "competitive”. This absolutist position is unpersuasive.

In Matter of Meenagh v Dewey (286 NY 292, 306, supra), involving classification of process servers in a District Attorney’s office, Chief Judge Lehman outlined the wisdom of classifying some positions within a given title exempt, and others competitive: "We may assume that the classification of twelve of the original sixty positions of process server in the exempt class, while forty-eight of the positions with that title were classified in the competitive class, was made because the Commission found that for the performance of some duties a few men were needed with special qualities for which an examination would furnish no practicable test. Ability to perform the routine duties of a process server would not prove fitness to perform those duties which, in the opinion of the Commission, could be performed only by men selected by the District Attorney because of their personal qualities”. More recently in Matter of Grossman v Rankin (43 NY2d 493, 504, supra), the court again acknowledged the propriety of similar titles with different civil service classifications. This same approach might be appropriate in dealing with criminal investigators and may, indeed, be what has motivated the Civil Sevice Commission to classify the top level investigators noncompetitive or exempt, while classifying other investigators competitive. In fact, the principle expressed by Chief Judge Lehman was repeated in a memorandum by Governor Malcolm Wilson accompanying his veto of a bill that would have provided exempt status for criminal investigators: "I can understand the need for exempt status of some investigators and confidential assistants. To the extent that the need can be shown for some, expecially those engaged in undercover work, to have exempt status * * * I assume that the relevant local and State civil service authorities would be sensitive to the particularized needs of criminal justice agencies, especially in a time of rising crime. This bill is not so limited, however, rather, it would extend exempt status to all investigators and confidential assistants, including those carrying out relatively routine, non-sensitive functions, and for that reason, I am constrained to withhold my approval of the bill.” (1974 Public Papers of Governor Malcolm Wilson, p 150.)

Thus, the classification problem cannot be resolved by resort to absolutes. Just as petitioners’ argument that no investigators may be classified as competitive must be rejected, were the Civil Service Commission, in the face of a demonstrable need for some exempt or noncompetitive positions, to insist on classifying all positions competitive, that classification might well be struck down as unreasonable. On the record in these cases, however, the classifications cannot be termed arbitrary.

On this analysis, it is not decisive that in some other counties, because of the possible or likely variation in local circumstances, all criminal investigators are classified exempt. There is a measure of flexibility allowed a civil service commission, beyond judicial review, in deciding whether to classify investigators "exempt”, and how many to so classify. While in some counties all investigators are classified exempt, in others all are classified competitive, and in still others, as in Nassau and Orange, there is a combination of classifications. The difference in treatment, taken alone, does not establish that any one classification or that the Statewide pattern is arbitrary. Instead, a petitioner must show that the determination by which he feels aggrieved cannot stand on any reasonable basis. Or a petitioner must show at least that the State-wide pattern is not based legitimately on local variations in conditions, office organization, availability and use of coexistent police resources, and the like. Even then for a petitioner to prevail he must show that the classification he seeks is the right one; it is not enough to show that a classification elsewhere is the wrong one. The petitioners in this case have not demonstrated any of these defects. But it does not mean that a proper case for excluding confidential investigators from the competitive class could never be made out.

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

In each case: Order affirmed.  