McGowan v. Mayor, City of NY

423 N.E.2d 18, 53 N.Y.2d 86, 440 N.Y.S.2d 595, 1981 N.Y. LEXIS 2446
CourtNew York Court of Appeals
DecidedJune 4, 1981
StatusPublished
Cited by13 cases

This text of 423 N.E.2d 18 (McGowan v. Mayor, City of NY) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGowan v. Mayor, City of NY, 423 N.E.2d 18, 53 N.Y.2d 86, 440 N.Y.S.2d 595, 1981 N.Y. LEXIS 2446 (N.Y. 1981).

Opinions

OPINION OF THE COURT

Fuchsbekg, J.

The substantive issue we are called upon to determine„is whether, under section 434a-3.0 of the New York City Administrative Code, a New York City police lieutenant [90]*90whom the police commissioner assigned to act in a supervisory capacity in the detective division became entitled per se to an increase in his level of compensation. Insisting that he was, the plaintiff, James P. McGowan, whose case has been severed from consolidated actions in which a considerable number of other lieutenants and sergeants sought similar relief, sued for the statutory salary differential.

Section 434a-3.0, which outlines the methodology for structuring the detective division, authorizes the commissioner to staff it with members of the regular police force whom he “details” to such “service”. In police parlance, “detailing” is accomplished by a routine personnel order by which a change of police duty is identified and effected. Of particular interest to this case is subdivision c of section 434a-3.0 which, added to this statute when it was amended in 1964, specified that, among the persons “so detailed,” the commissioner is authorized to “designate lieutenants as commanders of detective squads” and sergeants as “supervisors” of such squads.

As the sole basis for his demand for a salary level beyond that which his rank as police lieutenant would have called for had he been detailed to other duty, the plaintiff relies on subdivision c’s statement that lieutenants and sergeants “while performing duty in [the detective] division and while so designated as commanders * * * or supervisors * * * shall be paid such salary as may be determined by the may- or” (emphasis supplied).1 It is undisputed that some individuals who were so assigned to these posts were also clearly, and indeed expressly, “designated” as such by the commissioner and, during the period they held these designations, were the recipients of the salary differentials fixed by the Mayor accordingly. It is also uncontested that neither the plaintiff nor, for that matter, any of the other suitors from whose cases his was severed, was ever the subject of such a designation or the beneficiary of a corresponding financial emolument.

Nevertheless, Special Term and the Appellate Division overruled the city’s contention that designation by the com[91]*91missioner was an unfulfilled condition precedent to any possible recovery by Lieutenant McGowan. Instead, in the main because, in the view of these courts, it would have been fairer to have treated all those assigned to command or supervisory service equally, they held that de facto service in these posts sufficed to mandate the ordinance’s salary benefits. In effect, at least in this context, any distinction between the terms “detail” and “designate” was rendered meaningless by these decisions. The result, after a drawn-out course of litigation at nisi prius and in the Appellate Division, was a monetary judgment for the plaintiff.2 For the reasons which follow, we reach a contrary conclusion.

Preliminary, we note that the wisdom or fairness of the statutory scheme, on which, as already indicated, the courts below so decisively commented, and to which the parties have alluded extensively in their briefs, is besides the point. No constitutional infirmity or violation of statutory law having been raised, these essentially are considerations for the Legislature and not for the courts (Matter of Rapp v New York City Employees’ Retirement System, 42 NY2d 1, 6). Thus, it matters not if, in its practical application, as plaintiff hypothesizes, the ordinance may produce “organizational weaknesses”, “chafed command relationships” or “chaotic” personnel practices, including the possibility that, because of the impact of seniority, the lack of an increase in the salary of a detailed but undesignated commander of a detective squad may mean that the commander will receive a lower salary than that of a detective under his command. Absent the constraint of any overriding legal or [92]*92constitutional principle, it was similarly a matter for legislative judgment alone as to whether, especially given the quasi-military nature of the police, it would enhance rather than handicap their performance to vest the commissioner, who, in any event, is empowered to make and terminate the assignments in question as he sees fit, with authority to selectively designate from among those whom he favors with appointment to leadership roles, the ones who, in his judgment, deserve what the city’s brief calls merit increases to “sharpen motivation and reward outstanding performance”.

Focusing then on the applicable Administrative Code provision, we begin with a bit of unrefuted history of the circumstances that preceded, accompanied and followed its enactment. From these we observe that, well before subdivision c was incorporated in the 1964 enactment (Local Laws, 1964, No. 17 of City of New York), it had been the practice to allocate fewer budgetary lines for supervisors and commanders of detective squads than the number of officers who would be given such assignments. In exercising discretion as to the choice of designees, each commissioner, not surprisingly, would adopt different criteria. So, according to an affidavit by former Chief of Detectives Albert Seedman, submitted on behalf of the plaintiff and his then consolidated confreres, at least since 1956 “a rough form of seniority was in effect to allocate the limited number of budgetary lines to the greater number of supervisors and commanders of detective squads”. (Cf. Matter of Hagan v Murphy, 39 Misc 2d 82, 87, affd 19 AD2d 862, affd 14 NY2d 701.) And, according to an affidavit of a chief personnel officer for the police department, in his time and experience the commissioner would designate individuals only after the officer’s “entire performance and experience record” had been reviewed before a board composed of high ranking officers.

It was in this setting that section 434a-3.0 of the Administrative Code was introduced “by request of the Police Commissioner” (1964 Proceedings of the Council of the City of New York, p 679) and unanimously passed following a favorable committee report (id., p 981). This report stated, in pertinent part (id., p 977):

[93]*93“[The bill] incorporates into law positions presently authorized and provided for in the budget, namely

* * *

“(c) commanders and supervisors of detective squads who must be lieutenants and sergeants, respectively, at a salary to be determined by the Mayor.

“The positions of commander of detective squad, supervisor of detective squad, first, second and third grade detective have long been established in the Police Department’s organization. However, except for the position of first grade detective, there has been no statutory authority for these designations. In order to provide a foundation for departmental organization, it is deemed necessary to include these designations within the Administrative Code.”

That the proposed law was not intended to alter the practice of limiting the number of detective squad members who would be both detailed and designated appears from the bill jacket.

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Bluebook (online)
423 N.E.2d 18, 53 N.Y.2d 86, 440 N.Y.S.2d 595, 1981 N.Y. LEXIS 2446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-mayor-city-of-ny-ny-1981.