Breitel, J. P.
Petitioner, an attorney in the Law Department of the City of New York, by this proceeding under article 78 of the Civil Practice Act, attacks the reclassification of some 120 (or 139) attorneys in his department.
Special Term sustained so much of the petition as averred that new positions of higher importance and salary had been created, restrained filling certain of such higher positions, and directed a hearing to determine the nature of the duties before reclassification of attorneys occupying Grade 4 titles.
The contentions of petitioner and the city agencies shake down to a few, simple, albeit crucial, issues. Petitioner argues that the purported reclassification was illegal. This is so, he says, because new duties—especially supervisory ones—, distinctively new titles, and substantially higher salaries are assigned to particular persons and positions without benefit of promotion examinations and selection from promotion lists. The city agencies, on the other hand, contend that the reclassification was no more than recognition, by new titles, new job descriptions, and appropriate salary adjustments, of the facts as they existed prior to reclassification. They argue that this being so, there were no new positions created; there were no vacancies to be filled; and, consequently, there was no occasion for promotion examinations or selection from promotion lists. The city agency also urges that in the event promotions were involved, then the giving of such examinations therefor was neither practicable nor desirable.
Involved in the case is the title of Attorney—Grade 4 This was a competitive civil service grade of long standing. It was, however, the highest grade in its occupational class, and without limit on salary range or duties assigned. This type of highest and unlimited grade, which occurs with some frequency in the competitive civil service, is in reality a grade with ungraded groups within it. Thus, within this grade there were a number of subtitles—Tax Counsel, Law Clerk, Law Assistant, Deputy Assistant Corporation Counsel, Associate Assistant Corporation Counsel, Assistant Counsel, etc.—, each with varying duties and responsibilities assigned. Nevertheless, within the grade, these subtitles bore no promotional or ranking relationship, one to the other. The differences among them were, nevertheless, sizable.
Petitioner held a position as Tax Counsel within the larger Grade-4. Under the reclassification the entire grade (i.e., Attorney— Grade 4) in the Law Department, has been reclassified into true grades, with present ranking and future promotional [286]*286relationships among them. To these new grades have been attached descriptions with much more detailed duties and responsibilities than were included in the old job descriptions. The higher grades notably involve various, significant supervisory responsibilities. Moreover, the salary adjustments resulting from the re-allocation of salaries represent substantial financial differences for many of these positions. While all, under the reclassification and reallocation, have received increases, those with the higher titles have, on a relative basis, received considerably larger increases.
The issues may be resolved by quite simple principles. A governmental agency, the employees of which are protected by the merit civil service system, may be reconstituted by reclassification. Such reclassification may involve the establishment of new titles, new job descriptions and an adjustment of salaries. Of themselves, none of these, alone or together, determines the validity or the invalidity of the reclassification. The reclassification is valid if it substantially conforms the civil service structure to the realities which obtained in the operation of the agency prior to reclassification. Thus, if the reclassification does no more than give accurate titles and more accurate job descriptions to positions which existed before the reclassification, it is unexceptionable. If, in the process, an adjustment of salaries is required in order to make rational the reward for actual duties and responsibilities of the reclassified positions, this reallocation, of itself, does not render invalid the reclassification. This is the effect of the holding in Matter of Cook v. Kern (278 N. Y. 195) and the cases which preceded it (e.g., Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sandford v. Finegan, 276 N. Y. 70). When such valid reclassification has been effected, as pointed out in the Cook case “ No new position has been created, no vacancy has occurred, and the sole purpose of the promotion examination was for filling vacancies ” (p. 199).
But the foregoing principle is not without limitation. If ‘ out-of-title ’ work was invalidly imposed upon or assumed by the incumbents 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. This is the effect of the holding in Matter of Williams v. Morton (297 N. Y. 328). Indeed, the New York City [287]*287Civil Service Commission recognized this principle, for in the very Career and Salary Plan which it adopted, and under which the instant reclassification was made, it provided that ‘ out-of-title ’ work he disregarded. (Resolution on Career and Salary Plan, § IV, adopted Aug. 19, 1954.)
The principal question, then, in this case, is whether the reclassification of ‘Attorney — Grade 4’ in the Law Department of the city was done properly within the rule in Matter of Cook v. Kern (supra), or whether, in whole or in part, it falls afoul of the limitation expressed in Matter of Williams v. Morton (supra).
Put more concretely: Under the reclassification, was the assignment of new titles and new job descriptions, together with a reallocation of salaries, no more than a recognition of the facts as they existed (if validly within the then titles), with respect to those positions prior to reclassification? If so, the petition should be dismissed. Or, did the reclassification in fact reorganize the division by assigning new duties and responsibilities not carried, or not carried validly, by the incumbents or their positions prior to reclassification, and by conferring supervisory, superior status by way of title and higher salaries, thus create vacancies which, in ordinary course, must be filled by promotion and examination? If so, the petition is substantially sustained and some form of relief must eventually be awarded.
On the record, these issues may not be now resolved.
The record is incomplete.
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Breitel, J. P.
Petitioner, an attorney in the Law Department of the City of New York, by this proceeding under article 78 of the Civil Practice Act, attacks the reclassification of some 120 (or 139) attorneys in his department.
Special Term sustained so much of the petition as averred that new positions of higher importance and salary had been created, restrained filling certain of such higher positions, and directed a hearing to determine the nature of the duties before reclassification of attorneys occupying Grade 4 titles.
The contentions of petitioner and the city agencies shake down to a few, simple, albeit crucial, issues. Petitioner argues that the purported reclassification was illegal. This is so, he says, because new duties—especially supervisory ones—, distinctively new titles, and substantially higher salaries are assigned to particular persons and positions without benefit of promotion examinations and selection from promotion lists. The city agencies, on the other hand, contend that the reclassification was no more than recognition, by new titles, new job descriptions, and appropriate salary adjustments, of the facts as they existed prior to reclassification. They argue that this being so, there were no new positions created; there were no vacancies to be filled; and, consequently, there was no occasion for promotion examinations or selection from promotion lists. The city agency also urges that in the event promotions were involved, then the giving of such examinations therefor was neither practicable nor desirable.
Involved in the case is the title of Attorney—Grade 4 This was a competitive civil service grade of long standing. It was, however, the highest grade in its occupational class, and without limit on salary range or duties assigned. This type of highest and unlimited grade, which occurs with some frequency in the competitive civil service, is in reality a grade with ungraded groups within it. Thus, within this grade there were a number of subtitles—Tax Counsel, Law Clerk, Law Assistant, Deputy Assistant Corporation Counsel, Associate Assistant Corporation Counsel, Assistant Counsel, etc.—, each with varying duties and responsibilities assigned. Nevertheless, within the grade, these subtitles bore no promotional or ranking relationship, one to the other. The differences among them were, nevertheless, sizable.
Petitioner held a position as Tax Counsel within the larger Grade-4. Under the reclassification the entire grade (i.e., Attorney— Grade 4) in the Law Department, has been reclassified into true grades, with present ranking and future promotional [286]*286relationships among them. To these new grades have been attached descriptions with much more detailed duties and responsibilities than were included in the old job descriptions. The higher grades notably involve various, significant supervisory responsibilities. Moreover, the salary adjustments resulting from the re-allocation of salaries represent substantial financial differences for many of these positions. While all, under the reclassification and reallocation, have received increases, those with the higher titles have, on a relative basis, received considerably larger increases.
The issues may be resolved by quite simple principles. A governmental agency, the employees of which are protected by the merit civil service system, may be reconstituted by reclassification. Such reclassification may involve the establishment of new titles, new job descriptions and an adjustment of salaries. Of themselves, none of these, alone or together, determines the validity or the invalidity of the reclassification. The reclassification is valid if it substantially conforms the civil service structure to the realities which obtained in the operation of the agency prior to reclassification. Thus, if the reclassification does no more than give accurate titles and more accurate job descriptions to positions which existed before the reclassification, it is unexceptionable. If, in the process, an adjustment of salaries is required in order to make rational the reward for actual duties and responsibilities of the reclassified positions, this reallocation, of itself, does not render invalid the reclassification. This is the effect of the holding in Matter of Cook v. Kern (278 N. Y. 195) and the cases which preceded it (e.g., Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sandford v. Finegan, 276 N. Y. 70). When such valid reclassification has been effected, as pointed out in the Cook case “ No new position has been created, no vacancy has occurred, and the sole purpose of the promotion examination was for filling vacancies ” (p. 199).
But the foregoing principle is not without limitation. If ‘ out-of-title ’ work was invalidly imposed upon or assumed by the incumbents 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. This is the effect of the holding in Matter of Williams v. Morton (297 N. Y. 328). Indeed, the New York City [287]*287Civil Service Commission recognized this principle, for in the very Career and Salary Plan which it adopted, and under which the instant reclassification was made, it provided that ‘ out-of-title ’ work he disregarded. (Resolution on Career and Salary Plan, § IV, adopted Aug. 19, 1954.)
The principal question, then, in this case, is whether the reclassification of ‘Attorney — Grade 4’ in the Law Department of the city was done properly within the rule in Matter of Cook v. Kern (supra), or whether, in whole or in part, it falls afoul of the limitation expressed in Matter of Williams v. Morton (supra).
Put more concretely: Under the reclassification, was the assignment of new titles and new job descriptions, together with a reallocation of salaries, no more than a recognition of the facts as they existed (if validly within the then titles), with respect to those positions prior to reclassification? If so, the petition should be dismissed. Or, did the reclassification in fact reorganize the division by assigning new duties and responsibilities not carried, or not carried validly, by the incumbents or their positions prior to reclassification, and by conferring supervisory, superior status by way of title and higher salaries, thus create vacancies which, in ordinary course, must be filled by promotion and examination? If so, the petition is substantially sustained and some form of relief must eventually be awarded.
On the record, these issues may not be now resolved.
The record is incomplete. Only some of the persons involved, only some of the titles involved, and only some of the job descriptions involved, have been disclosed. In no instance has the underlying supporting data been supplied,—only argumentative or conclusory assertions. A hearing would appear necessary to determine the facts with respect to all of the persons and positions concerned.
In the conduct of such an inquiry, however, it is, generally, not the office of the court to take original evidence of the facts, either as they existed prior to reclassification, or as it is proposed they should exist subsequent to reclassification. This is a proceeding under Article 78. It concerns an administrative determination in the exercise of discretion, and such determination is sustainable if there be any rational basis for it. Put negatively: The court’s power to review ceases if it appears that the action was neither arbitrary nor capricious; the court’s function is not to redetermine the issue or to weigh the evidence the administrative agencies had before them. (Matter of Meenagh v. Dewey, 286 N. Y. 292, 306-307; Matter of Levine v. [288]*288Connelly, 267 App. Div. 796, motion for leave to appeal denied 267 App. Div. 926, 292 N. Y. 724; Buckley v. Conway, 270 App. Div. 1066.)
Consequently, all that need he developed upon a judicial inquiry is the basis upon which the several administrative agencies acted, at the time they acted, in promulgating the reclassification and reallocation. From the record we understand that this consists of the various studies made by the New York City Civil Service Commission, the supporting surveys made by Griffinhagen & Associates, the desk audits made of the various positions, and the several questionnaires which were returned with respect thereto. If these studies and related material supply a rational basis for the act of reclassification, that is the end of the matter. Support to sustain the agencies’ action would be some evidence that the supervisory work to be done, by the persons to whom ranking positions have been assigned, was part of the work done by these persons prior to reclassification. In addition, it must appear that such supervisory work, which was done prior to reclassification, was within the titles and job descriptions provided for old Grade 4. Usually, the latter question could be determined, as a matter of law, simply by comparing the language of the titles and the job descriptions. In this instance, one hesitates to make such determination, because the language alone is not so clear, and the record is incomplete. It may, therefore, become relevant for the court to take evidence, explaining or elaborating the meaning and effect of the old titles and the old job descriptions. In this connection, the factor of practical construction, over the years, may well prove to be significant. (Cf. Matter of Kolb v. Holling, 285 N. Y. 104, 112; Ferraiolo v. O’Dwyer, 302 N. Y. 371.)
Up to this point, one does not reach the question of the need for promotion examinations. If the reclassification is valid, then the incumbents of the old positions automatically move into the realigned positions. There is no vacancy, and, hence, there is no promotion required. (Matter of Cook v. Kern, 278 N. Y. 195, supra.) If, on the other hand, the reclassification is invalid because it is really a reorganization—creating new positions, not describing old duties but creating new ones—then vacancies are created. In such event they may not be filled, except by promotion examinations, unless there is a showing that such examinations are not practicable. (Matter of Williams v. Morton, 297 N. Y. 328, supra.) Once again, this record is insufficient to make a definitive holding. While both sides have adequately briefed the particular issue on the law, the basis for the finding by the city agencies that promotion examinations [289]*289were not practicable, is not sufficiently revealed, except, perhaps, for some partially conclusory assertions. Should this question become material on the hearing, then the city agencies may come forward with the record they had had before them in support of their exercise of discretion.
Accordingly, the order of Special Term should be modified by striking therefrom the injunctive provisions, and the order should be otherwise affirmed, the matter to be remitted for a hearing as to all of ‘ Attorney—Grade 4 ’, but in accordance with the views expressed herein. Settle order.
While the plan under which this reclassification was effected provides for an administrative appeal (Resolution on Career and Salary Plan, § IX, adopted Aug. 19, 1954), and the answer in this proceeding contains a defense of failure to exhaust administrative remedies, no point was made of this issue on the appeal. In any event, anyone is entitled to bring a proceeding to review an allegedly invalid reclassification (Matter of Andersen v. Rice, 277 N. Y. 271, 281; Matter of Cash v. Bates, 301 N. Y. 258, 261). Moreover, petitioner is not seeking a readjustment of his classification, but the striking down of the entire reclassification in his division.