Opinion
July 20, 1970
In a proceeding pursuant to article 78 of the CPLR to compel reinstatement of petitioner to his position as radio operator in the office of respondent Sheriff, the appeal is from a judgment of the Supreme Court, Nassau County, dated April 23, 1969, which dismissed the petition. Judgment reversed, on the law, with costs, petition granted, and respondent directed to reinstate petitioner to his position of radio operator as of the date of his dismissal. Petitioner in November, 1968 had been employed for the then past 11 years as a radio operator in the office of the Sheriff of Suffolk County; he is, in addition, an honorably discharged veteran of World War II. On July 1, 1968 the Board of Supervisors of Suffolk County adopted a local law, subject to a mandatory referendum, by which the personnel in the Sheriff's office were classified in the civil service and all employees of the office who had served for one year prior to the effective date of the local law would be covered in their position without examination; the local law also amended the Suffolk County Charter to authorize the Sheriff, subject to the Civil Service Law, to appoint the deputies and employees of his office. The local law provided for two effective dates: (1) as to the classification of the personnel in the civil service and the covering in of the personnel, the provisions were to become effective immediately on the approval of the voters at the referendum; and (2) as to the amendment of the Charter, this provision was to become effective on January 1, 1969. The referendum was held on November 15, 1968 at the general election and the local law was approved. On November 15, 1968 petitioner was discharged from his position by the Sheriff, concededly without charges or any claim of incompetency or unsatisfactory performance of the duties of his position. In this proceeding to review the action of the Sheriff, the latter contends that, despite the provisions of the local law, it did not become effective until December 10, 1968, the date of its filing in the office of the Secretary of State, and that, therefore, petitioner was not entitled to the protection of civil service status. Special Term sustained this contention. We do not agree. Section 27 Mun. Home Rule of the Municipal Home Rule Law provides that, upon the approval of the electors of a local law of a county, the local law shall be filed in the offices of the County Clerk, the State Comptroller, and the Secretary of State within five days after the approval; and it further provides that the local law shall not become effective until it is filed in the office of the Secretary of State. The provisions of this section were not complied with by the county — the local law was not filed with the Secretary of State until 35 days after its approval. If the section had been complied with, the local law would have become effective on November 10, 1968, at the latest, and petitioner would have acquired civil service status. Thus, petitioner suffers as a result of the default of the County to observe its obligations under the statute. But we think also that the intent of the local law is frustrated by the dismissal of the petition. Clearly, the Board of Supervisors and the electors intended that those employees of more than a year's standing should not be subject to removal by the Sheriff after the approval of the local law at the referendum. Thus, it was intended, no matter what the effective date of the law might be, that it was to be operative at the time of its approval at the referendum. To put it another way, the date of filing in the office of the Secretary of State — an action which might be delayed by many factors — was not to vary the time that the local law covered in the employees of the Sheriff's office. A distinction has long existed between the effective date of a statute and its operative date. A legislative body may prescribe that a law shall be operative at a time either before or after its effective date ( Gusthal v. Strong, 23 App. Div. 315; cf. People v. Jaehne, 103 N.Y. 182; for examples, see CPLR 10003, and, as the Municipal Home Rule Law itself, L. 1964, ch. 78, § 15). Thus, the local law operated to vest petitioner with the rights of civil service status as of November 5, 1968, upon becoming effective by filing in the office of the Secretary of State on December 10, 1968. That this was the intent of its authors is reinforced by the fact that the local law provided for two effective dates — for two separate actions under the law. The date of January 1, 1969 for the effect of the amendment to the Charter reflected the contemplation of the authors that this would occur after the filing of the local law — that is, the time that it became operative so far as it amended the Charter. In both instances it is apparent that the authors, in using the word "effective", referred to the "operative" date, and not the date of filing. Though all legislation cannot be applied retrospectively, there is no reason to deprive petitioner of that benefit. The local law is remedial, having as its laudable object the extension of civil service rights to the employees of the Sheriff (N.Y. Const., art. V, § 6; cf. People ex rel. Taylor v. Welde, 28 Misc. 582). As the object of the local law was plainly to benefit petitioner, the local law should be construed in his favor. We accordingly reverse the dismissal of his petition and grant him reinstatement in his position. Christ, P.J., Hopkins and Benjamin, JJ., concur; Rabin and Munder, JJ., dissent and vote to affirm the judgment.