Opinion
Decided April 25, 1985
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Joseph Jiudice, J.
Stephen J. Wing, County Attorney, for appellants.
Thomas D. Mahar, Jr., for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the petition dismissed.
The issue is whether petitioner has been demoted in "grade and title" or otherwise subjected to a disciplinary penalty which entitles him to a hearing pursuant to Civil Service Law § 75.
Petitioner was appointed to the position of Director of Continuing Services in the Dutchess County Department of Mental Hygiene. This position is a permanent appointment in the competitive class of the civil service. Petitioner later received the "functional title" of Division Head of Continuing Services. A functional title is an intradepartmental noncivil service title established for administrative convenience. The duties of Division Head and Director are substantially similar and the title of Division Head carries no increase in salary or benefits. Petitioner was subsequently removed from the position of Division Head, without a hearing. Although he retained his grade and civil service title, he lost most of his duties and responsibilities. Petitioner commenced this article 78 proceeding seeking reinstatement. Special Term granted the petition on the ground that petitioner's dismissal from his functional position was a demotion without a hearing in violation of Civil Service Law § 75. The Appellate Division affirmed and we granted leave to appeal.
Civil Service Law § 75 (1) provides that a person holding a permanent appointment in the competitive class of the civil service "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section" without a hearing (emphasis added). The disciplinary penalties provided in Civil Service Law § 75 (3) include "demotion in grade and title". In this case, petitioner has not lost his civil service grade or title, nor has he been subjected to any other disciplinary penalty provided in Civil Service Law § 75. Consequently, although petitioner may have been demoted in the sense that he was dismissed from his functional position, he was not demoted within the meaning of Civil Service Law § 75 (3) and thus was not entitled to a hearing.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.