Heslin v. City of Cohoes

74 A.D.2d 393, 428 N.Y.S.2d 334, 1980 N.Y. App. Div. LEXIS 10850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1980
• Status: Published

Opinions

OPINION OF THE COURT

Casey, J.

In accordance with the procedure set forth in its collective bargaining agreement with the respondent city, the petitioner has pursued grievances on behalf of its members, Westfall and Decatur, the only two persons whose names appear on an existing civil service list for appointment to the position of Captain in the Cohoes Police Department. Their grievances arose because the city appointed one George Donahue, provisionally, to the position of Police Captain and his name was not on the eligible list. The petitioner contends that the collective bargaining agreement insofar as it binds the city to past practices was violated because in the past the city had, on occasion, resorted to the lists—even statutorily insufficient ones—when appointments were made provisionally in the police department and that this past practice, as agreed to in collective bargaining, binds the city to appoint one of the two grievants from the list to the position of Police Captain that it desired to fill.

The arbitrator to whom the controversy was submitted made an award (1) concluding that the respondent city violated the collective bargaining agreement when it provisionally appointed George Donahue to the position of Police Captain; (2) compelling the respondent city to appoint to that position on a permanent or provisional basis one of the two grievants herein whose names are the only ones appearing on an eligible civil service list; (3) directing the city to make the eligible selected whole for any loss of earnings with interest at 3% from the date it appointed the present holder provisionally; and (4) retaining jurisdiction in the arbitrator in the event a dispute arises as to the calculation of moneys due to the person selected.

At Special Term the petitioner moved to confirm the award; the respondent cross-moved to vacate such award, a motion that could be considered even if not made (International Components Corp. v Klaiber, 59 AD2d 853). Special Term held that the statutory authority of the Civil Service Law precludes a contractual agreement to use an eligible list containing fewer than three names and dismissed the petition. While such dismissal was not strictly in conformity with the provisions of CPLR 7511 which permits only the (1) vacating, (2) modifying or (3) confirming of such award, the effect of this determination was clearly to grant the respondent’s motion to vacate the award, for the reasons stated by Special Term, which, in effect, decided that the arbitrator’s award exceeded his authority under CPLR 7511 (subd [b], par 1, cl [iii]).

Although the relief demanded in the city’s answer is limited insofar as it fails to raise a public policy issue, the answer does demand "such other and further relief as to the court may seem just and proper”, and is, therefore, sufficiently broad to have allowed Special Term to consider that issue; and Special Term could have done so, even though the award made was agreed to by the parties (Garrity v Lyle Stuart, Inc., 40 NY2d 354).

In this court, and apparently for the first time, the respondent challenges the award made on the following grounds: (1) that the provisions of the Civil Service Law prohibited the city from bargaining away any of its discretion in making provisional appointments; (2) that the award exceeds the scope of the arbitrator’s authority; (3) that article 75 is procedurally improper to challenge the respondent’s action, article 78 being required.

The basis of the first challenge interjects a public policy consideration into the proceeding and, therefore, may be raised by the respondent for the first time, on appeal, in this court (Matter of Niagara Wheatfíeld Administrators Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68, 72), and if a violation be found, for that reason, this court can vacate the award without the necessity of remanding to the arbitrator for corrective action (Garrity v Lyle Stuart, Inc., supra). Article 75, not article 78 review, is, therefore, procedurally appropriate.

When the city resorted to the promotional lists on past occasions to fill vacant positons in its police department, it did so, inferentially, because the person appointed suited the city’s desired qualifications for the particular position and the person selected would have been appointed provisionally whether or not his name appeared on an eligible list. It does not follow from the occasional past practice of resorting to such lists that the statutory provisions of subdivision 1 of section 61 and section 65 of the Civil Service Law can be collectively bargained away. If it did, the city would always be compelled to appoint from the lists, even if they contained only one name and even if that person, in the city’s judgment, lacked all the other necessary qualifications or requirements for the position, except having passed the civil service examination. This result contravenes public policy by defying the provisions of the Civil Service Law (§ 61, subd 1; § 65) which the Legislature has enacted and which, therefore, is the public policy of this State.

The city’s power to bargain collectively is limited to such matters that are not plainly and clearly prohibited by statute, decisional law or restrictive public policy (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774), and it has already been held by this court that section 65 of the Civil Service Law implicitly prohibits collective bargaining agreements as to provisional appointments, the nature and extent of such appointments being constitutionally (NY Const, art V, § 6) and statutorily prescribed (Matter of City of Binghamton [Binghamton Civ. Serv. Forum], 63 AD2d 790). It follows for the same reason that the statutory scheme of subdivison 1 of section 61 of the Civil Service Law, giving the city the right to select “one of three” for permanent civil service appointment, cannot be the subject of collective bargaining either, and that a list containing fewer than three eligible names does not comply with that statute, and an appointment therefrom cannot be compelled (Matter of Redman v New York City Tr. Auth., 14 AD2d 911). Matter of Sprinzen (Nomberg) (46 NY2d 623), cited by the dissent, is inapposite for that case did not consider appointments to public employment which are statutorily prescribed in the Civil Service Law.

The award exceeds the arbitrator’s powers in another respect. The city is not afforded the opportunity to terminate the appointment made and leave the position vacant. As a provisional appointee, the present holder serves at the will of the city only (Matter of City of Binghamton [Binghamton Civ. Serv. Forum], supra), and the city has the right to appoint or not appoint and this right must be afforded it (Matter of Turel v Delaney, 287 NY 15).

Inasmuch as the city cannot be compelled to fill the position, neither of the grievants herein has shown any entitlement to appointment and, therefore, cannot be awarded compensation consisting of back pay with interest for failing to have been appointed.

The award as made by the arbitrator exceeds his powers (CPLR 7511, subd [b], par 1, cl [iii]) because public policy forbids such a practice being the subject of collective bargaining, and it should, therefore, be vacated in all respects and the judgment of Special Term should otherwise be affirmed.

The judgment should be modified, on the law, by adding thereto a provision vacating the award, and, as so modified, affirmed, with costs to respondent.