
    In the Matter of Hugh J. Gavigan, Jr., Appellant, v Thomas F. McCoy, as State Administrator of the Judicial Conference of the State of New York, Respondent.
    Argued September 8, 1975;
    decided October 21, 1975
    
      
      John I. Coster for appellant.
    I. The proof below conclusively supports the judgment of Special Term. II. The duties" of Law Assistant II, which petitioner concededly performed since 1958, were lawfully performed by him under the title of Assistant Special Deputy Clerk. (People ex rel. Patterson v Board of Educ. of City of Syracuse, 269 App Div 39; People ex rel. McGoldrick v Riggs, 200 Misc 313; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285; Carpenter v Stilwell, 11 NY 61; People ex rel. Finnegan v McBride, 226 NY 252; Matter of Foy v Schechter, 1 NY2d 604; Matter of Pedrick v Town Bd. of Town of Huntington, 24 Misc 2d 1066; Matter of Ainsberg v McCoy, 26 NY2d 56; Matter of Roistacher v McCoy, 32 NY2d 479.)
    
      Michael Colodner and Michael R. Juviler for respondent.
    I. Petitioner’s performance of out-of-title law work gave him no legal right to be reclassified to the position of law assistant from the wholly clerical position of Assistant Special Deputy Clerk. (Matter of Ainsberg v McCoy, 26 NY2d 56; Matter of Roistacher v McCoy, 32 NY2d 479; Matter of Mandle v Brown, 5 NY2d 51; Matter of Niebling v Wagner, 12 NY2d 314.) II. Respondent was not estopped from reclassifying petitioner as anything other than a law assistant. (City of New York v Wilson & Co., 278 NY 86; New York City Employees’ Retirement System v Eliot, 267 NY 193; Matter of Town of Cornwall v Diamond, 39 AD2d 762; London v Hammel, 32 AD2d 639; Morris Realty Corp. v Rayon Holding Co., 254 NY 268; Gadzella v Neumaier, 67 Misc 2d 585; Matter of Goldhirsch v Krone, 18 NY2d 178.)
   Gabrielli, J.

The principal issue presented is whether the performance by petitioner, while an Assistant Special Deputy Clerk in the Bronx County Court, of the duties of a law assistant, entitled him to be reclassified to the position and title of Law Assistant II, following the 1962 court reorganization (NY Const, art VI, § 35).

Prior to the 1962 court reorganization (for a brief history see Matter of Ainsberg v McCoy, 26 NY2d 56), petitioner, an attorney admitted to practice in New York, was employed in the Bronx County Court in the title of Assistant Special Deputy Clerk. While serving in that position, he performed legal duties for Judges of that court in addition to various clerical duties generally assigned to such clerks.

In mid-1966, the Administrative Board of the Judicial Conference notified petitioner that it was converting his precourt reorganization title to that of a Court Clerk I. Petitioner protested claiming that his title should have been converted to the title of Law Assistant II.

Following administrative appeals which proved unavailing, petitioner commenced this article 78 proceeding seeking an order annulling the Administrative Board’s classification and directing that he be reclassified as a Law Assistant II. The petition alleged that his Assistant Special Deputy Clerk title was in the unlimited salary range category and without limitation of duty by statute or rule, and that since 1960 petitioner had been assigned to and performed the duties of a law assistant. Although conceding that he had been performing some of the duties of a law assistant, respondent correctly argued that the duties petitioner was assigned were out-of-title and, thus, could not form a basis upon which to convert his job title.

This proceeding was considered by this court on a prior occasion. At that time, we reversed an order of the Appellate Division dismissing the petition and remitted the matter to Special Term for further proceedings in accordance with the dissenting opinion at the Appellate Division (30 NY2d 787). The dissenters found the record, as it then stood, deficient in that specifically absent therefrom was evidence of the job description of an Assistant Special Deputy Clerk, and also as to whether the duties or salary range of that position were unlimited (36 AD2d 563, 564-565).

Upon remand, Special Term granted the relief sought in the petition and found that petitioner had an unlimited salary range and had performed the duties of a Law Assistant II under the title of an Assistant Special Deputy Clerk with the knowledge and consent of the predecessor agency of respondent. The Appellate Division reversed, one Justice dissenting, on the ground that performance of out-of-title work could not support a claim for reclassification. We affirm that determination.

For the past 25 years, this court has consistently held that the performance of out-of-title duties creates no right to reclassification to a new position involving those duties (Mat ter of Goldhirsch v Krone, 18 NY2d 178; Matter of Niebling v Wagner, 12 NY2d 314; Matter of Carolan v Schechter, 7 NY2d 980; Matter of Williams v Morton, 297 NY 328). Out-of-title duties are duties "not properly subsumed under the title and description of the old position” (Matter of Ainsberg v McCoy, 26 NY2d 56, 59, supra). Determinative of what duties are properly performed within any given title are the job specifications for that title (Matter of Roistacher v McCoy, 32 NY2d 479, 482, 485; Matter of Goldhirsch v Krone, supra, at pp 182-183).

We hold that petitioner is not entitled to be reclassified as a Law Assistant II. The job specifications for an Assistant Special Deputy Clerk in the Bronx County Court, introduced upon remand, show that legal duties were not properly undertaken under that title. The "General Statement of Duties” in the specifications only requires the performance of "clerical work”. In the 14 "Examples of Work” detailed for the title, not one requires extensive legal training. Indeed, listed as "Acceptable Experience and Training” is "One year of experience as a Supervising Clerk, or Supervising Typist, or Law Stenographer, or as a Court Attendant.” By way of comparison, under the job specifications for the title of Law Assistant in the Bronx County Court, the titleholder was expected to perform "professional legal research” on "intricate questions of law”. "Five years of legal experience subsequent to admission to the Bar” is listed as "Acceptable Experience and Training”. It is thus manifest that legal duties could not have properly been subsumed under the job specifications for an Assistant Special Deputy Clerk for that position was in sum and substance only clerical in nature. We conclude, therefore, that petitioner is not entitled to be reclassified to the title of Law Assistant II.

We see no merit in the additional contention, advanced at Special Term and by petitioner here, that respondent should be estopped from reclassifying petitioner because its predecessor agency knew of and consented to petitioner’s performance of legal duties while he was a court clerk. It has often been held that estoppel does not lie against the State, a municipality or their agencies where, as here, the governmental body was exercising its statutory or regulatory authority, and this is true irrespective of any representation or opinion by any of that body’s officers or employees (City of New York v Wilson & Co., 278 NY 86, 99-100; Matter of Town of Cornwall v Diamond, 39 AD2d 762; see 21 NY Jur, Estoppel, § 76). It is not without significance that while in response to urgings that petitioner’s status be clarified, the Civil Service Commission did reclassify petitioner’s title as "Assistant Special Deputy Clerk”, thereby declining to grant the desired reclassification to "Law Assistant II”.

The dissent appears to give emphasis to the concept that there was nothing contrived, deliberate or covert about the work assignment. It is thus appropriate to here note that, as then Judge Fuld pointed out in Matter of Goldhirsch v Krone (18 NY2d 178, 185, supra), it is immaterial that any deliberate manipulation be lacking. It is enough that the "higher pay and heavier responsibilities * * * did not grow out of the * * * work as prescribed by the job specifications” (Matter of Niebling v Wagner, 12 NY2d 314, 320, supra). Interestingly, in Goldhirsch this court embraced (as it did in Niebling) and readopted the statement in Matter of Mandle v Brown (4 AD2d 283, 286, affd 5 NY2d 51) that "[i]f 'out-of-title’ work was invalidly imposed upon or assumed * * * prior to the reclassification, it may not be validated by a reclassification which is based thereon. This means that one may not deliberately manipulate a reclassification simply by first imposing or by assuming new duties and responsibilities, and then thereby avoid the necessity for filling vacancies by promotion by reclassifying the added duties and responsibilities”.

For over 75 years it has been the avowed purpose of civil service laws to promote the good of the public service (People ex rel. Kastor v Kearny, 164 NY 64; People ex rel. Sweet v Lyman, 157 NY 368); and it should be readily apparent that the well-established rule we enforce today (as it has been for decades) is designed to and does safeguard the graded positions of civil service and thus insulates their status from political manipulation.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Fuchsberg, J.

(dissenting). I do not believe this proceeding to be the conventional out-of-title case that is encompassed by the court’s holding in Matter of Ainsberg v McCoy (26 NY2d 56).

There was nothing covert, contrived, connived or casual about the work assignment here, whether on the part of the petitioner or of those responsible for his supervision. (Cf. Matter of Niebling v Wagner, 12 NY2d 314, 320.) Shortly after the petitioner, a member of the Bar, entered the civil service as Court Attendant in 1956, his special abilities appear to have been recognized and recruited by his superiors, who thereupon directed him to do responsible legal research, write "tentative decisions” and otherwise perform the panoply of activities which fall within the job description of what would today be classified as Law Assistant II. It does not appear to me to take away from the fundamental nature of these duties that also included were such incidental clerical chores as are the concomitant of almost any staff position in our courts.

There was nothing temporary or intermittent about this work assignment. After continuing him uninterruptedly at it for years, the Administrative Judge of the Bronx County Court, where petitioner worked, apparently decided to take steps to give petitioner’s de facto status de jure recognition as well. Accordingly, on administrative initiative, he caused an official study of petitioner’s position to be conducted by the New York State Department of Civil Service itself. It fully confirmed the accuracy of the afore-mentioned job description (as indeed do the trial findings that led to Special Term’s decision here). Having so found, the department classified petitioner as Assistant Special Deputy Clerk. In so doing, it formally put him under the umbrella of the Assistant Deputy Clerk title it thus established and, in my opinion, put petitioner’s position beyond the reach of the political manipulation which the majority fears. It also thereby afforded him all the benefits, including those of salary range, that he would have enjoyed, had there then been, as there is now, a Law Assistant II status within which he could be classified.

It was only later, when the Administrative Board of the Judicial Conference, succeeding to the Civil Service Department’s jurisdiction over such employees (see NY Const, art VI, §§ 28, 35; Judiciary Law, § 212), decided to ignore the department’s action by eliminating the Assistant Special Deputy Clerk title, that petitioner, after all the years of recognition of the role he was fulfilling, found himself blamelessly placed in a classification nether-nether land from which he was relegated to the title of Court Clerk I. As Mr. Justice (now Judge) Cooke said in his dissenting opinion below (45 AD2d 356, 359), that "did not conform to pre-existing reality”.

If, instead, respondent had reclassified petitioner under the Law Assistant II title, far from that action doing violence to the principles of the civil service, it would have vindicated petitioner’s right to the job security which is at the very heart of the civil service system and the entitlement of every civil servant. (See Wood v City of New York, 274 NY 155, 161.)

Accordingly, and for the further reasons more fully advanced in Judge Cooke’s opinion, and on the special facts and circumstances here, I respectfully suggest that the reinstatement of the judgment of Special Term would prefer substance over form and thus better serve the applicable law, and I so vote.

Judges Jasen, Jones and Wachtler concur with Judge Gabrielli; Judge Fuchsberg dissents and votes to reverse in a separate opinion; Chief Judge Breitel and Judge Cooke taking no part.

Order affirmed. 
      
       Listed as "Examples of Work” for an Assistant Deputy Special Clerk were: "Prepares calendar of cases called at each session;
      Enters proceedings of the court in the minute book and desk blotter;
      Enters indictments and records of conviction;
      Opens court with a proclamation;
      Prepares commitments;
      Swears in jurors, and witnesses;
      Administers oaths to court stenographers, interpreters and defendants;
      Maintains records of exhibits and safeguards them during trial;
      Takes and enters verdicts;
      Supervises work of court attendants while court is in session;
      Prepares orders for furnishing food, lodging and transportation for jurors;
      Checks daily attendance of jurors and keeps records for their payment;
      Performs a variety of clerical tasks in the Chief Clerk’s office when court is not in session.
     