By making their request, the plaintiff officers necessarily contended
that their work in the CIU constituted a temporary assignment to
detective work that had continued beyond 18 months. Cassino, who has
testified in a related proceeding that his office has a policy of
promoting temporarily assigned detectives to that rank after 18 months in
conformity with the Civil Service Law, asked various people in the
Department for their view as to whether the CIU members were performing
detective work. It appears (albeit not entirely from admissible evidence)
that some said they were and some said they were not. The Commissioner
sided with those who said they were not and notified the officers by
letter dated February 23, 1999 that, after careful consideration, he was
denying their request. Commissioner Cassino did not follow any formal
hearing procedure before making his determination.
At that point, as so often seems to happen, the officers bypassed the
route most likely to offer them redress — they did not go into the
New York State Supreme Court and bring an Article 78 proceeding
challenging the Commissioner's decision on the ground that Cassino's
determination about the nature of their work was arbitrary and capricious
and contrary to law. Instead, they flew into federal court, alleging that
their constitutional rights had been violated in two ways: (1)
procedurally, in that they were deprived without due process of their
promotion to detective — in which they claimed to have a property
interest by virtue of Civil Service Law Section 58; and (2)
substantively, in that the Commissioner had deprived them of their
statutorily-mandated promotion in a way that shocked the conscience or
interfered with rights implicit in the concept of ordered liberty. Both
constitutional claims depend for their viability on plaintiffs' having a
property interest in a Section 58 promotion to detective. In addition,
plaintiffs asserted a State law claim under Section 58.
Commissioner Cassino has moved for summary judgment on a variety of
grounds. I need not reach all of them, because he is clearly entitled to
dismissal of this case for failure to state any viable constitutional
I turn first to the question of whether plaintiffs have a property
right in a promotion to detective pursuant to Section 58. They might, but
only in one circumstance: if they were in fact temporarily assigned to
perform the duties of a detective or investigator for a period exceeding
18 months. Should that set of facts pertain, then the law requires that
they be promoted to the grade of detective and be paid accordingly. The
statute is plain on its face. Its language is mandatory. Yonkers'
invocation of Section 75 of the Civil Service Law, which concerns
entitlement to a hearing when an employee has been removed or
disciplined, is entirely off the mark and has nothing whatever to do with
the issue before the Court.
Unfortunately for plaintiffs, that is far from the end of the inquiry.
The Civil Service Law does not specify what duties constitute "the duties
of a detective or investigator." That is left entirely to the discretion
of local authorities. of this, the legislative history of Civil Service
Law Section 58, in both its prior and current incarnations, leaves no
doubt: according to a memorandum prepared by the New York State
Department of Civil Service and submitted to the Governor in connection
with his consideration of the revised Section 58, the local civil service
commission or personnel officer retains full discretion to classify
particular positions as being functionally equivalent to detective or
investigator positions. Obviously, the mere fact that a police officer
SAYS he is doing such work does not make it so. Neither does the fact
that a police officer (like a member of the CIU) is involved in
investigations, since to a greater or lesser extent ALL police officers
do investigative work (as opposed to "the work of . . . an
investigator"). What makes a particular line of work the functional
equivalent of detective work is the fact that the personnel officer so
determines. If his determination is arbitrary and capricious, without
substantial evidentiary support and contrary to law, then it can be
overturned pursuant to Article 78. But absent an official determination
that an officer's job is, in effect, a detective's job, the Civil Service
Law does not mandate that she be promoted.*fn1 Thus, the officer lacks
both a property right in the promotion and any constitutional claim,
either substantive or procedural.
If, as plaintiffs contend, they have been deprived of some property
right in a Section 58 promotion, they have an adequate remedy under State
law: an Article 78 proceeding. That is, in fact, the ideal forum in which
to adjudicate claims that a local official erroneously determined that a
CIU officer's job was not the equivalent of detective work. It has long
been the law in this Circuit that the availability of Article 78 as
post-deprivation remedy bars claims for violations of procedural due
process. See Hellenic-American Neighborhood Action Committee v. City of
New York, 101 F.3d 877 (2d Cir. 1996). It is true that Judge Winter's
opinion in HANAC distinguishes between alleged constitutional violations
that are the product of established policy (for which post-deprivation
remedies are not necessarily sufficient) and those that result from the
random act of a public official (for which they are). But plaintiffs'
effort to shoehorn themselves into the former category borders on the
frivolous. The CIU officers disagree with Commissioner Cassini's
determination that they do not do the work of a detective or an
investigator. That determination is not the product of any policy of the
City of Yonkers; it is, rather, his random and singular act as applied to
their particular duties. Thus, the availability of a post-deprivation
remedy — i.e., a place where that random and singular decision can
be reviewed for compliance with law — fully satisfies any
constitutional concerns that plaintiffs may have.
To the extent that plaintiffs prefer to have the Commissioner's job
classification decision reviewed on the merits here rather than next
door, they have come to the wrong place. What sort of jobs fall, or ought
to fall, within particular Civil Service classifications is peculiarly a
matter of New York State law. It has no federal implications whatsoever.
Judges of New York's Unified Court System are far more competent to pass
judgment on such matters than I am. Indeed, it would be the height of
arrogance for a federal court to determine a matter of purely State
interest on which the State courts have yet to speak. My colleague Judge
Brieant, who recently dismissed a similar case involving other
disgruntled members of the Yonkers Police Force, Calabrese v.
Christopher, 98 Civ. 1312 (S.D.N.Y.) (May 25, 1999), argued persuasively
that abstention would be entirely appropriate in this situation. This
case, as Judge Brieant noted in Calabrese, presents a legitimate legal
question concerning the administration of the New York Civil Service
law. Such a dispute should be settled by the State courts, rather than in
the context of federal constitutional litigation.
As plaintiffs state no cognizable federal claim, this Court declines
to entertain their State law claims.
Plaintiffs claims under the first cause of action is dismissed with
prejudice. The second cause of action is dismissed without prejudice to
being actually brought in New York State Supreme Court. The clerk of the
Court is directed to enter judgment accordingly. The pre-trial conference
scheduled for December 20, 1999 is cancelled in light of this decision.
This constitutes the decision and order of the Court.