Summary
In Miller we concluded that, under section 64, temporary appointments cannot be used to fill vacancies caused by "furlough and cycle time" because such absences are scheduled well in advance and are therefore "routine and nonurgent" (id.).
Summary of this case from In re MazzeoOpinion
June 10, 1998
Appeal from Judgment of Supreme Court, Monroe County, Bergin, J. — CPLR art 78.
Present — Green, J. P., Lawton, Wisner, Callahan and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly enjoined respondents from engaging in the practice of making temporary appointments of firefighters, including battalion chiefs, fire captains and fire lieutenants, to serve in out-of-title positions for higher ranking officers on scheduled furlough or cycle time, in violation of Civil Service Law § 64 Civ. Serv.. The record establishes that, prior to 1996, respondents made such temporary appointments. It further establishes that respondents determined furlough and cycle time for a given year in the fall of the previous year. Because such scheduling is routine and nonurgent, the use of temporary appointments to fill those vacancies is not authorized by Civil Service Law § 64 Civ. Serv. ( see generally, Matter of O'Reilly v. Grumet, 284 App. Div. 440, affd 308 N.Y. 351; Matter of Gates Keystone Club v. Roche, 106 A.D.2d 877). Thus, the court properly enjoined that practice.
The court erred, however, in enjoining respondents from making temporary appointments of firefighters to serve in higher ranking positions to fill vacancies for reasons other than scheduled furlough or cycle time. Respondent David L. Griffith, Fire Chief of the Rochester Fire Department, testified that it was necessary that each fire company be under the direction of an officer. Although the Fire Department had four floating officers within each group to fill vacancies caused by scheduled and unscheduled absences, the record establishes that there are not always enough officers to provide an officer for each company. Testimony was adduced that, because of the constantly shifting personnel pattern, the Fire Department cannot predetermine whether enough officers are available for a given day. Under those circumstances, respondent Fire Chief did not abuse the discretion accorded to him under Civil Service Law § 64 Civ. Serv. in making temporary appointments of firefighters to serve in higher ranking positions because of unscheduled absences ( see, Civil Service Law § 64 Civ. Serv.; Matter of Niagara Falls Fire Dept. Officers Assn. v. Bowser, 145 A.D.2d 907).
Thus, we modify the judgment by providing that respondents are enjoined only from engaging in the practice of temporarily appointing firefighters to serve in out-of-title positions for higher ranking officers on scheduled furlough or cycle time. To allow respondents an opportunity to comply in an orderly manner with the aforesaid injunction, we direct that its enforcement be stayed for 90 days from the date of service of a copy of the order of this Court with notice of entry.