
    In the Matter of John J. Purcell, Appellant, v. H. Eliot Kaplan et al., Constituting the State Civil Service Commission, et al., Respondents.
    Argued January 17, 1963;
    
    decided February 28, 1963.
    
      
      John T. Be Graff and Harry W. Albright, Jr., for appellant.
    I. The procedures adopted by defendants would, if upheld, nullify the remedial provisions of subdivision 2 of section 41 of the Civil Service Law. II. A temporary appointment, however long continued, can never ripen into a permanent appointment. (Koso v. Greene, 260 N. Y. 491; Matter of Hilsenrad v. Miller, 284 N. Y. 445; Matter of McCann v. Kern, 262 App. Div. 109; Matter of Aron v. Corsi, 197 Misc. 1; Matter of Camfield v. Mealy, 288 N. Y. 149; Matter of Goss v. Rice, 249 App. Div. 895; Matter of Fink v. Kern, 176 Misc. 114, 262 App. Div. 829; Matter of Greene v. New York City Housing Auth., 192 Misc. 293; Matter of Welling v. Bissell, 171 Misc. 90; Matter of Clifford v. Kern, 171 Misc. 512; Matter of Marasco v. Morse, 263 App. Div. 1063, 289 N. Y. 768; Matter of Apsel v. Kaplan, 21 Misc 2d 926.) III. The opinions of the courts below would nullify the plain intent of the statute.
    
      Louis J. Lefkowits, Attorney-General (Ruth Kessler Tooh and Paxton Blair of counsel), for respondents.
    I. The transfer of the positions by the Civil Service Commission from the exempt to the competitive class would become effective only if and when the Governor approves and the resolution is filed with the Department of State. Until then, the positions remained in the exempt class notwithstanding the commission’s determination of reclassification. Subdivision 2 of section 41 of the Civil Service Law, which provides for a survey and evaluation by the Civil Service Commission of an exempt position when a vacancy occurs, and that pending the Civil Service Commission determination the position be filled on a temporary basis only, does not require the continuation of the temporary status until gubernatorial action, for which there is no time limit. In any event, the period of four months from the commencement of the study and the occurrence of the vacancies in the offices which petitioner cites in his petition expired prior to the Governor’s approval of the reclassification and the filing thereof with the Department of State. The permanent appointees to the positions are therefore properly in office. (Matter of O’Reilly v. Grumet, 308 N. Y. 315.) II. The action of the commission was entirely proper under the commission’s general power of classification and under its power pursuant to subdivision 2 of section 41. (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Red Hook Cold Stor. Co. v. Department of Labor, 295 N. Y. 1; Matter of Hotel Assn. of New York City v. Weaver, 3 N Y 2d 206; Matter of Young v. Bragalini, 3 N Y 2d 602.) III. When a position is transferred from the exempt to the competitive class, an exempt incumbent in the position continues in it without examination. (Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sandford v. Finegan, 276 N. Y. 70.) IV. The temporary status of persons appointed under subdivision 2 of section 41 could not continue beyond four months. (Matter of Battaglia v. Morton, 272 App. Div. 372, 299 N. Y. 746.)
   Dye, J.

This article 78 proceeding was brought by this petitioner in behalf of himself and others similarly situated for an order in the nature of mandamus directing the defendants to classify the incumbents of certain named positions (Director of Miscellaneous Taxes, Director of Corporation Tax, Director of Income Tax, Director of Motor Vehicle Inspection, and Confidential Investigator) to which they were appointed to fill vacancies, on a permanent basis after April 1, 1959, as being employed on a temporary basis in the exempt class pending an appointment, in accordance with the Civil Service Law and Rules; to conduct appropriate examinations for such positions, and upon establishment of eligible lists to forthwith terminate the services of such incumbents and proceed to fill the positions from the eligible lists.

The petitioner’s situation illustrates the problem. On and prior to July 30,1959 he held the exempt position entitled Director of Miscellaneous Taxes. On that date he was removed, and simultaneously another was appointed temporarily to fill the vacancy thus created.

Thereafter the commission conducted a study to evaluate the exempt position of Director of Miscellaneous Taxes, following which and on October 22, 1959 it adopted Resolution No. 136, subject to the approval of the Governor, recommending that certain exempt positions, including those here involved, be reclassified to the competitive class, and “ approved the filling of these positions in the exempt class under the present titles” (Civil Service Law, § 6). The positions were then filled by permanent appointment of the temporary incumbents. The Governor was then notified of the action with the statement that ‘ ‘ the present incumbents of the positions will * * * acquire status ”. The Governor gave his approval January 12, 1960 and Resolution No. 136 became effective February 4, 1960 upon being filed in the office of the Secretary of State (Civil Service Law, § 6, subd. 1; Matter of Weeks v. Kraft, 147 App. Div. 403, appeal dsmd. 205 N. Y. 585).

The petitioner contends that, when the defendants made permanent the appointments of the temporary incumbents of the exempt class positions, recommended for reclassification with competitive class, they violated the provisions of the Civil Service Law (§ 41, subd. 2, as amd. by L. 1958, ch. 790, eff. April 1, 1959) which, in pertinent part, provides: Upon the occurrence of a vacancy in any position in the exempt class ” the State Civil Service Commission shall study and evaluate such position and, within four months after the occurrence of such vacancy, shall determine whether such position, as then constituted, is properly classified in the exempt class. Pending such determination, said position shall not be filled except on a temporary, basis ”.

Here, under the undisputed fact pattern, the commission not only made the study and evaluation of the exempt position but made its recommendation to reclassify the position within four months after the occurrence of a vacancy.

As we read the plain statutory language, the limitation on the temporary filling of the vacancy was ‘ ‘ Pending such determination ”. The resolution recommending reclassification did not of itself accomplish any change, and could not until made effective by the approval of the Governor.

When subdivision 2 of section 41 of the Civil Service Law is read in light of section 6, it may not reasonably be said that the Legislature intended to restrict the making of exempt class appointments to the uncertainty and indefiniteness of subsequent gubernatorial approval. It is more likely they intended that, in the meantime, such positions could lawfully be filled permanently. The filling of the positions in the exempt class is as much the duty of the commission as the making of a determination resulting from a study. As was quite properly pointed out in the courts below, the appointing authority was neither precluded nor estopped from making exempt class appointments except for the limited period pending determination of its studies. Under the circumstances of this case the interpretation and application given the statute by the commission is neither unreasonable nor unlawful.

The order appealed from should be affirmed, without costs.

Fuld, J. (dissenting).

I cannot agree with the decision now being made; in my view, it nullifies the provisions of subdivision 2 of section 41 of the Civil Service Law and actually sanctions the ‘ ‘ undesirable situation”, which the Legislature sought to correct, of ‘£ covering-in ’ ’ persons holding exempt jobs 1 £ through the back door ’ device of reclassification ” (Report of Temporary State Commission on Revision of Civil Service Law, referred to as Preller Commission [N. Y. Legis. Doc., 1953, No. 72], pp. 56-57).

The statute in substance provides that, when a position in the exempt class becomes vacant, the Civil Service Commission having jurisdiction shall study and evaluate the position and, within four months of the occurrence of the vacancy, determine whether such position is properly classified in the exempt class (L. 1958, ch. 790, eff. April 1, 1959). And, the subdivision goes on to declare, Pending such determination, said position shall not be filled, except on a temporary basis ”. (Italics supplied.)

Following the petitioner’s removal from his exempt position in July of 1959, the position was immediately filled by an appointment, pursuant to the provision of the statute, on a temporary basis. The State Civil Service Commission then conducted a study of the position and by resolution adopted in October, 1959 declared that it should be in the competitive class. And, then, instead of waiting for the Governor to act on the resolution (Civil Service Law, § 6, subd. 1) or of making provision for a competitive examination to fill the position, the Civil Service Department permitted it to be filled on a permanent basis as an exempt position. About three months later, the position was officially reclassified as competitive — by the Governor’s approval of the commission’s resolution — and the recently appointed incumbent was frozen into competitive status without examination.

The petitioner, an employee who would be eligible to take an examination for the reclassified position if one were given, brings this proceeding to compel compliance with the statute’s requirements. More specifically, he seeks (1) a declaration that the appointment was on a “ temporary basis ” and (2) a direction that appropriate examinations be held, as required by law, for the reclassified position. The courts below have held against him, and he is before us by permission of the Appellate Division.

The 1958 enactment of subdivision 2 of section 41 was unquestionably designed to prevent a person from being granted competitive class status upon reclassification of the exempt position which he held. This is made clear beyond dispute by the Preller Commission, the body set up by the Legislature to recodify the Civil Service Law. In the course of its report recommending a bill which subsequently became subdivision 2 of section 41, the commission pointed out that the proposed amendment would ‘1 correct an undesirable situation, which permits persons to gain competitive class status through the ‘ back door ’ device of reclassification” (Report of Temporary State Commission on Revision of Civil Service Law [N. Y. Legis. Doc., 1953, No. 72], pp. 56-57).

As I have already indicated, the procedures adopted in this case whereby an exempt position was filled on a permanent basis not only violates the letter and spirit of the statute but nullifies its provisions. In opposition, it is urged that subdivision 2 is to be differently interpreted, that the word “ determination ” contained therein should be read to denote the Civil Service Commission’s “ resolution ”, declaring that a position be reclassified, rather than the actual legally effective ‘ ‘ determination ’ ’ which follows approval by the Governor and filing with the Secretary of State (Civil Service Law, § 6, subd. 1).

It is conceivable, I suppose, for one to read the statute in this excessively literal fashion but it is highly unreasonable to imagine that the Legislature could have intended any such construction. The commission’s resolution has no legal effect whatsoever until approved by the Governor. Consequently, when the Legislature provided that the exempt position was not to be filled except on a temporary basis pending the “ determination ”, it must have meant such a “ determination ” as would render the commission’s action effective. Otherwise, the amendment accomplished nothing: filling the exempt position on a permanent basis after the commission adopts its resolution but before the Governor may even have an opportunity to act on it will permit the very “ covering-in ” which the Legislature sought to eliminate.

In short, to approve the procedures adopted by the defendants in this case reads out of subdivision 2 of section 41 its explicit direction that the exempt position shall be filled only "on a temporary basis ” and defeats the very aim and purpose of the statute.

I would reverse the order appealed from and grant the relief requested in the petition.

Judges Van Voorhis, Btjrke, Foster and Soileppi concur with Judge Dye; Judge Full dissents in an opinion in which Chief Judge Desmond concurs.

Order affirmed.  