Beggs v. Kern

The city of New York, through the Department of Welfare, the Board of Child Welfare, the Department of Hospitals, and the Department of Correction, is performing social service in a wide field. It is common knowledge that relief of the needy, furnished through those departments, has constantly increased during the last decades, and especially since 1931. The number of social investigators employed in these departments has also increased greatly. While the number of social investigators employed in each department was small the positions held by them were not graded and so long as the positions were ungraded the head of the department had power to increase the salary of a social investigator or to assign to a social investigator powers and duties of direction and supervision of others in the same employ without any of the limitations imposed by law where there is promotion from one grade to another grade in the graded service. (Matter of Amann

In June, 1937, the Municipal Civil Service Commission took the first step towards classifying and grading such positions. That resolution provides:

“ Resolved, That the competitive class of the Municipal Civil Service classification be and the same is hereby amended by including therein a new part to be known as

“ ‘ Part (appropriate number), The Social Service (ERB or successor).

“ ‘ Grade 1, Social Investigator, to but not including, $1,800 per annum.

“ ‘ Grade 2, Assistant Supervisor, Medical Social Worker, Home Economist, $1,800 to but not including, $2,400 per annum.

“ ‘ Grade 3, Supervisor, $2,400 to but not including, $3,000 per annum.

“ 1 Grade 4, Senior Supervisor, $3,000 to but not including, $4,200 per annum.

“ ‘ Grade 5, Assistant Director, $4,200 to but not including, $6,000 per annum.

“ 1 Grade 6, Director, $6,000 or over.’ ”

By its terms that resolution was intended to apply only to employees of the Emergency Relief Bureau or its successor. Those employees had been appointed without competitive examination and had no rights of tenure to the positions which they held. (Matter of Kraus v. Singstad, 275 N. Y. 302 .) In January, 1937, the Municipal Civil Service Commission adopted a resolution classifying and grading in similar manner positions in the Board of

“ 1. All persons of the title of Social Investigator and Special Investigator in the Board of Child Welfare lawfully performing the duties pertaining to such titles and receiving the salaries lawfully attaching thereto are hereby continued in such titles, duties and salaries regardless of the classification hereinafter set forth.

“ 2. All supervisory positions in the Board of Child Welfare shall be filled by promotion examinations to be hereafter ordered and in accordance with the titles and grade ranges hereinbefore set forth.

“ 3. No person shall perform supervisory duties in the Board of Child Welfare unless such person shall have passed the appropriate competitive examinations and been certified therefrom.” '

A similar resolution was adopted on January 12, 1938, extending the same classification and grading to the Department of Hospitals, subject to the same conditions.

By resolution adopted on September 21, 1938, the same classification and grading was extended by resolution of the

The plain intent of that resolution is that, though positions in the competitive class of the social service in all departments of the city of New York should be classified and graded as provided in the resolution, yet that the classification and grading should not apply to such positions while held by persons theretofore appointed and who at. that time had the title of social investigator, and that the titles, salaries, duties and status of the incumbents should remain unaffected by the grading of positions as provided in the resolution.

Grading of positions previously ungraded confers upon the incumbents some advantages not previously enjoyed and subjects the incumbents to some new disadvantages. An incumbent may not thereafter be demoted to a lower salary grade at the will of the department head; nor may he be promoted to a higher salary grade or assigned to duties not appropriate to the title of the graded position without taking appropriate examination for promotion. The Civil Service Law (Cons. Laws, ch. 7) determines the effect of the grading. The Civil Service Law does not in express terms confer upon a civil service commission power to grade positions in a department and at the same time to provide that the grading shall not affect the salaries, ! duties and status of present incumbents of such positions. The Commission urges that such power should be read into .the law by implication, for otherwise, it is said, reclassifi- ' cation and grading of positions in the public interest will be unduly obstructed. In the courts below the incumbents of

The situation of these incumbents would be anomalous if the provisions of the resolution which exclude them from the regrading were given the intended effect. So long as an incumbent continues to occupy the position he now holds, the position would no longer be ungraded and the salary could no longer be decreased at the will of the department head; yet the incumbent would not occupy a position which falls within any grade provided in the resolution itself. In effect, each position would constitute a separate grade and any change in the rank, functions or salary of the incumbent would constitute a change of grade. We agree with the courts below that by no fair implication can there be read into the statute an intention to confer upon the Civil Service Commission a power to adopt a resolution which would have such an extraordinary effect.

The intent of the Civil Service Law is that there shall be grading of positions in a department where grades can be fixed reasonably with due regard for the public interest. The Civil Service Law does not contemplate that, where such grades may be fixed reasonably, positions may be graded for persons appointed in the future, while the positions in the same service remain ungraded, so long as they continue to be occupied by incumbents previously appointed, though the incumbents have the same powers and duties as those appointed to positions in that service thereafter. It follows that the incumbents whose positions, while occupied by them, have been excluded from the grades fixed for positions in the same service when filled

It is provided in the Municipal Civil Service Rules that

“ 12. ‘ Rank/ denotes the order or standing of a position with reference to the degree of its responsibility. (Where Rank and Grade are co-extensive the term Grade is used.)

“ 13. ‘ Grade/ denotes the order or standing of a Position with reference to the compensation attaching to it.

“ 14. ‘ Title/ a designation of a Position based upon its duties and functions.

“ 15. "Office title/ designation of a position the duties of which are peculiar to a department.”

We are told that in accordance with the definitions contained in the Civil Service Commission’s rule the grading of positions is determined solely by the salary paid, and that the salary range of the grades as fixed in the resolution of the Commission determines that all positions to which a salary within that range is attached, necessarily fall within such grade. The courts below, sustaining that contention, have held that, as a result, there must be included in “ Grade 2, assistant supervisor, medical social worker, home economist, $1,800 to but not including, $2,400 per annum,” the position of every social investigator who receives a salary within the salary range of that grade, even though some of such social investigators have never performed duties appropriate to the title of assistant supervisor, medical social worker, or home economist, while their positions were ungraded, and even though the administrative heads of the departments and the Civil Service

As authority for that conclusion the respondents lean heavily upon Matter of Carlin v. Finegan ( 254 App. Div. 654 ) and Matter of Friedman v. Kern ( 258 App. Div. 1050 ; leave to appeal denied, 282 N. Y. 809 ). In the Carlin case, the applicant, Carlin, after competitive examination, had been appointed to an ungraded position of chemist. His salary was increased from time to time until he received $2,860 per year. Thereafter, the Civil Service Commission graded the positions in the “ chemist service,” establishing the following grades, amongst others:

Grade 4 — Chemist — $2,700 to $3,300.

Grade 5 — Senior Chemist — $3,300 to $3,900.

Grade 6 — Principal Chemist — $3,900 upwards.

Carlin was placed in Grade 4, while chemists in the same service and performing similar duties were placed in Grade 5 or Grade 6. Carlin challenged the right of the Commission to grade, according to salary, the positions of men performing similar duties, but the court held otherwise. In the Friedman case the question presented was similar. Friedman held a position in an ungraded service. In grading that service incumbents, according to the opinion of the justice at Special Term, were “ included in titles and grades appropriate to their duties and salaries.” Friedman claimed that his position, when graded, must be placed in a grade with a salary range higher than the salary he was receiving because he had previously had a title used to describe positions in a higher grade, but the court said that the holder of an ungraded position was not “ entitled to an increase of salary or to a title applicable only to persons receiving salaries considerably in excess of those which the petitioners were receiving.” In those cases the city successfully maintained that under the Civil Service Rules, “ The grade of a position is determined by the compensation of the position regardless of the duties performed or the

Under the definitions of the Civil Service Rules, each position has a “ title ” or “ designation ” which is “ based upon its duties and functions,” and also has a “ rank ” which “ denotes the order or standing of a position with reference to the degree of its responsibility,” and a “ grade ” which may be co-extensive with its rank but which denotes the “ order or standing of a position with reference to the compensation attaching to it.” The Civil Service Law recognizes no distinction in the rank, duties or grading of positions in the ungraded service. Within the limits of that ungraded service the department head, as we have said, is free to change the rank, the duties or the salary of those appointed in that service after competitive examination. When the position is graded the rank, functions and grade of the position of the incumbent are fixed and change is subject thereafter to the provisions of the Civil Service Law. Ordinarily the salary attached to a position varies with the rank, powers and duties of the position and since the “ grading ” of a position is determined by the compensation attaching to the position it is evident that before there can be any grading of the positions in an ungraded service there must be determination of how far there should be differentiation in rank and duties in the positions within the service. After the Commission has decided these matters, the position must be placed in the grade fixed by the salary attached to the position. The courts in the cited cases decided nothing else.

The Commissioners, faced by the problem of how to grade the ungraded service in manner which, in their, opinion, would best serve the public interest in the future and at the same time protect the incumbents of ungraded positions, have attempted to solve it by the exercise of powers not granted by the statute. Because of that, we cannot give to the resolution its intended effect, but we may not give to the resolution of the Commission an effect not intended by the Commission. The Commission must reclassify and grade all the positions in the ungraded social service, but the courts may not require the Commission in such reclassification to confer upon the incumbents of the ungraded positions rights and benefits to which they would not otherwise be entitled and which in the opinion of the Commission would work injury to the administration of the city’s affairs.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.