| Matter of Gramando v Putnam County Personnel Dept. |
| 2009 NY Slip Op 00537 [58 AD3d 842] |
| January 27, 2009 |
| Appellate Division, Second Department |
| In the Matter of Joseph Gramando et al.,Respondents-Appellants, v Putnam County Personnel Department et al.,Appellants-Respondents. |
—[*1] Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, N.Y. (Mark C. Rushfield of counsel),for respondents-appellants.
In a proceeding, inter alia, pursuant to CPLR article 78 in the nature of mandamus to compelPutnam County Personnel Department and Paul Eldridge to accept and certify the appointmentof the petitioner Joseph Gramando to the position of Director of School Facilities, Operations,and Transportation of the petitioner Carmel Central School District, and to certify the payroll asto that position, Putnam County Personnel Department and Paul Eldridge appeal, as limited bytheir brief, from so much of an order and judgment (one paper) of the Supreme Court, PutnamCounty (O'Rourke, J.), entered February 11, 2008, as granted the petition to the extent ofdirecting them to retain the petitioner Joseph Gramando in the subject position until a new civilservice examination for the position is administered and to administer a new civil serviceexamination for that position, and permanently enjoining them from instituting civil or criminalproceedings against the petitioner Carmel Central School District Board of Education inconnection with the payment of the salary of the petitioner Joseph Gramando, and, in effect,dismissed their counterclaim for an award of costs and the imposition of sanctions pursuant to 22NYCRR 130-1.1, and the petitioners cross-appeal from so much the same order and judgment asdirected Putnam County [*2]Personnel Department and PaulEldridge to administer a new civil service examination and limited the period of time duringwhich the petitioner Joseph Gramando was to be retained in his position.
Ordered that the order and judgment is modified, on the law, by deleting the provisionsthereof granting the petition to the extent of directing Putnam County Personnel Department andPaul Eldridge to retain the petitioner Joseph Gramando in the position of Director of SchoolFacilities, Operations, and Transportation of the petitioner Carmel Central School District until anew civil service examination is administered and to administer a new civil service examinationfor that position, and permanently enjoining them from instituting civil or criminal proceedingsagainst the petitioner Carmel Central School District in connection with the payment of thesalary of the petitioner Joseph Gramando, and substituting therefor a provision denying thepetition and dismissing the proceeding on the merits; as so modified, the order and judgment isaffirmed insofar as appealed and cross-appealed from, with one bill of costs to Putnam CountyPersonnel Department and Paul Eldridge.
The contention of Putnam County Personnel Department and Paul Eldridge, the PersonnelDirector of the Putnam County Department of Personnel (hereinafter together the County), thatthis proceeding was not timely commenced is without merit. The proceeding was commencedboth within four months after the determination to be reviewed became final and binding uponthe petitioners and within four months after the County's refusal, upon the petitioners' demand, toperform its allegedly nondiscretionary duty (see CPLR 217 [1]).
"Where, as here, an administrative agency takes action without an evidentiary hearing, thestandard of review is not whether there was substantial evidence in support of the determination(see CPLR 7803 [4]), but rather, whether the determination had a rational basis, and wasnot 'arbitrary and capricious' " (Matterof Ball v New York State Dept. of Envtl. Conservation, 35 AD3d 732, 733 [2006];see CPLR 7803 [3]; Matter of Sasso v Osgood, 86 NY2d 374, 385 [1995]; Matter of Halperin v City of NewRochelle, 24 AD3d 768, 770 [2005]; Matter of Poster v Strough, 299 AD2d127, 141-142 [2002]; Matter of Department of Envtl. Protection of City of N.Y. vDepartment of Envtl. Conservation of State of N.Y., 120 AD2d 166, 169 [1986]). "Further,in a proceeding seeking judicial review of administrative action, the court may not substitute itsjudgment for that of the agency responsible for making the determination" (Matter of Ball vNew York State Dept. of Envtl. Conservation, 35 AD3d at 733; see Matter of ChemicalSpecialties Mfrs. Assn. v Jorling, 85 NY2d 382, 386 [1995]; Flacke v Onondaga LandfillSys., 69 NY2d 355, 363 [1987]). "This court will not interfere with the discretion of [a CivilService] Commission in determining the qualifications of candidates unless the decision wasirrational and arbitrary" (Matter ofVillone v Nassau County Civ. Serv. Commn., 16 AD3d 591, 592 [2005]; see Matterof Thorsen v Nassau County Civ. Serv. Commn., 300 AD2d 405 [2002]; Matter ofNeedleman v County of Rockland, 270 AD2d 423, 424 [2000]).
Under the Civil Service Law, "[a]ppointments and promotions shall be made from theeligible list most nearly appropriate for the position to be filled" (Civil Service Law § 61[1]). Under Putnam County's Civil Service Rules, the "Personnel Director shall determine theeligible list most nearly appropriate for the position to be filled" (Putnam County Civil Servicerule XI [1]). Rules prescribed by a municipal civil service commission for carrying into effectthe provisions of the Civil Service Law, when filed with the Secretary of State, have the forceand effect of law (see Civil Service Law § 20 [1], [2]).[*3]
Here, Eldridge ultimately determined the eligible listmost nearly appropriate for the position to be filled (see Putnam County Civil ServiceRule XI [1]). Since the petitioner Joseph Gramando, whom the petitioner Carmel Central SchoolDistrict Board of Education (hereinafter the School District) selected for appointment, was notamong the three individuals "standing highest on such eligible list," the appointment violatedCivil Service Law § 61 (1).
While the petitioners assert that Gramando was one of only two potential candidates on theeligible list who actually satisfied all of the minimum qualifications for appointment to theposition to be filled, their contention is without merit. It is undisputed that the announcement forthe examination that resulted in the eligible list that was ultimately certified set forth a specialrequirement that the successful candidate possess a supervisor asbestos license at the time ofappointment. However, Eldridge subsequently determined that possession of that license at thetime of appointment was unnecessary since the successful candidate could obtain such licensewithin a reasonable time after appointment. Consequently, Eldridge acted properly and withinhis authority in determining that the possession of the license at the time of appointment was nota requirement of the position (see Putnam County Civil Service Commission rule XXII[2] [c]), and in certifying as eligible for appointment those applicants who did not possess thelicense at the time of the examination (see Civil Service Law § 50 [4] [a]). Oncehe did so, the School District acted illegally in appointing Gramando on the basis of hispossession of the license, since more than three individuals who were certified for appointmentranked ahead of him on the list (see Civil Service Law § 61 [1]). Accordingly, theCounty had a rational basis for refusing to certify the payroll as to Gramando (see CivilService Law § 100 [1]), and its actions in so doing were not arbitrary or capricious.Additionally, the County's actions were not arbitrary and capricious on the basis of an allegedinconsistency with the actions it took in connection with arguably similar circumstances in adifferent school district. Contrary to the petitioners' contentions, the circumstances under whichthe County approved an appointment in the Mahopac Central School District were not identicalto those presented here. Also, contrary to the petitioners' contention, the County did not violate arule it had duly adopted (cf. Matter of Poss v Kern, 263 App Div 320 [1942]).
Under the particular circumstances of this proceeding, the Supreme Court improperlydirected the County to administer a new civil service examination. We note that, upon thedismissal of the proceeding, the County has the discretion to determine whether to certify anexisting eligible list as most nearly appropriate to the position to be filled, or to administer a newexamination (see Putnam County Civil Service rule XI [1]).
The Supreme Court providently exercised its discretion in, in effect, dismissing the County'scounterclaim, and in thus declining to award costs to it or impose a sanction upon the petitioners(see 22 NYCRR 130-1.1).
The parties' remaining contentions are without merit or have been rendered academic by ourdetermination. Spolzino, J.P., Covello, Angiolillo and Chambers, JJ., concur.