Summary
describing statute preceding Executive Law Articles 12 and 12-A as requiring "substantial conformance by the local probation and parole agencies to State standards"
Summary of this case from Opn. No. 2003-4Opinion
December 7, 1970
Appeal from a judgment of the Supreme Court at Special Term, entered July 29, 1970 in New York County, which dismissed petitioners' application in a proceeding under CPLR article 78. The appeal has been transferred to the Appellate Division, Third Department. Petitioners who are probation and parole officers complain that they have been assigned greater numbers of cases than are prescribed by the staffing and caseload standards formulated by the State Director of Probation, in violation of section 14-a Correct. of the Correction Law. They seek a judgment directing respondents to conform to such standards or, in the alternative, directing the State Director of Probation to recommend to the Commissioner of Correction the withholding of State aid. Special Term dismissed the petition for legal insufficiency. Petitioners contend that subdivision 2 of section 14-a Correct. of the Correction Law imposes a mandatory duty to conform to such workload standards. With this contention we do not agree. Although the word "shall" is used in subdivision 2 of this statute, the legislative intent must be determined from the contents of the entire statute and from the purpose sought to be accomplished. (McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 177, p. 255.) The plain import of the language of section 14-a is that there be a substantial conformance by the local probation and parole agencies to State standards, subdivision 5 giving respondents the right to deal with those local authorities whose standards are at objectionable variance with the State standards. We find the use in subdivision 2 of such discretionary words as "recommended" and "conformed" indicate no intent to mandate uniform staffing and workload standards State-wide. The transition from the use of the word "shall" in subdivision 2 to the use of the word "may" in paragraph 5 leaves little doubt that the Legislature intended the former word to be permissive only. We, therefore, conclude that it is within the discretion of the proper official to grant or withhold State aid. Mandamus does not lie to compel the performance of a discretionary power. ( Gaynor v. Rockefeller, 15 N.Y.2d 120, 131; Matter of Gimprich v. Board of Educ. of City of New York, 306 N.Y. 401, 405-406.) Petitioners could have pursued their complaint of being assigned unreasonable workloads through the duly prescribed grievance procedures established by the Judicial Conference specifically provided for the employees of the unified court system. There was no exhaustion of that administrative remedy by the mere writing of letters. (See 22 N.Y.CRR part 23; also Matter of Cherofsky v. McCoy, 47 Misc.2d 226, affd. 25 A.D.2d 577, mot. for lv. to app. den. 18 N.Y.2d 577.) Judgment affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.