Summary
In Matter of Valdes v Krone (28 A.D.2d 748) the statutory phrase "in direct line of promotion" was construed to require that the eligible positions be "of the same type, in the same department, subdivision, category, etc."
Summary of this case from Matter of Walters v. ClarkOpinion
June 19, 1967
Appeal from a judgment of the Supreme Court, Albany County, in a proceeding pursuant to CPLR article 78 limiting the promotional field for candidates on civil service examinations for various positions in the Department of Labor only to those who are serving in the next lower title. Subdivision 1 of section 52 Civ. Serv. of the Civil Service Law provides in part that "Vacancies in postions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as determined by the state civil service department". Special Term has construed this section to mean "that the next lower grade is the limitation unless the commission finds that it is impracticable. It is an arbitrary action to qualify lower grades without reason which is in keeping with the law." ( 50 Misc.2d 856, 859.) We cannot agree with this interpretation. Subdivision 1 of section 52 clearly states " a lower grade" rather than " the next lower grade" and a "direct line of promotion" rather than " the next direct position in line of promotion" and therefore while the postion must be of the same type, in the same department, division, category, etc., there is no mandate that it be at the next lower salary grade. Nor does the legislative history portend a different interpretation (see 1953 New York State Legislative Annual, p. 82). Accordingly, the eligibility list must be upheld except for the inclusion of senior economist, senior public information specialist and senior training technician, all in grade 18. These the commission admits are not in a "direct line of promotion", and while subdivision 1 of section 52 permits the commission to include positions "in related or collateral lines of promotion" when "it is impracticable to limit eligibility for promotion to persons holding lower grade positions in direct line of promotion", there is here no determination by the commission that this statutory test is met as to these positions. Nor can the necessary findings be implied from the commission's actions (see, Matter of Giorgio v. Lang, 37 Misc.2d 1006, 1011-1012, affd. 18 A.D.2d 968). The stated reason for expanding the list is a general desire to broaden the field rather than the statutory test of the impracticability of a more restricted list. Moreover, the very detail with which the commission shows the qualifications of eligible persons in a direct line negates any inference that a restriction to these persons would not be practicable. Judgment modified, on the law and the facts, so as to reverse so much thereof as ruled ineligible to take promotional examinations those held by the commission to be in a direct line of promotion, and, as so modified, affirmed, without costs. Settle order. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds. J.