certificate. A fire district has never been established under seetion 38, etc., of the County Law. The company bought its own apparatus and maintains itself. INQUIRY Does service in this company entitle a member, employed in the civil service of this State, to exemption from removal as specified in section 22 of the Civil Service Law? Section 22 of the Civil Service Law provides: 66 No person holding a position by appointment or employment in the state of New York or in the several cities, counties, towns or villages thereof who shall have served the term required by law in the volunteer fire department of any city, town or village of this state or who shall have been a member thereof at the time of disbandment of such volunteer fire department shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges and with the right of such employee or appointee to a review by a writ of certiorari." It will be seen that the privilege created by section 22 extends only to persons who have served in a volunteer fire department of any city, town or village of this State." The members of the fire company referred to in your letter appear not to have been members of a "fire department of any city, town or village of this State." The privilege therefore does not extend to them. Dated, April 12, 1912. THOMAS CARMODY, To Messrs. BURNS & FENNo, 2 Grand Street, White Plains, N. Y. Civil Service Law, Section 16 Where the several deputies attorney-general in the competitive class of classified civil service are each performing duties requiring examinations to test their merit and fitness that involve tests and qualifications of an essentially different character, an increase of salary of any one can in no sense be considered a promotion over the others. INQUIRY Whether a promotion examination is necessary where the salary of any one of the several deputies attorney-general now classified in the competitive service is increased? OPINION The deputies in this department who are in the competitive class, although bearing the same title or designation, are each performing duties of an essentially different nature and kind. To test their merit and fitness to perform those duties, would require for each of such positions an examination involving tests and qualifications of an essentially different character. The Civil Service Commission has recognized this fact in holding competitive examinations of an essentially different nature and kind for these positions and in establishing different eligible lists as a result of such examinations. Yet it appears that the Commission has graded all of these positions together solely on the basis of salary. In People ex rel. Lodholz v. Knox, 58 App. Div. 541 (aff. 167 N. Y. 620), the court said at page 545: 66 Clearly it is the position and not the salary which fixes the grade from which a promotion is to be made, which shows that what the Legislature evidently had in view was that the grading should be determined, not by the pay received but by the duties performed." "There is nothing in the law which I can find that authorizes the commissions to consider the salary to be paid. All they are to classify is the position." "While to him (the appointee) the salary is a very important matter, so far as the city is concerned the important thing is the position which he occupies. He is examined with reference to the position he is to fill, not the salary he is to receive." From these excerpts it is evident that these positions were classified in the competitive class because of the nature of the duties the incumbents were performing and they are properly in the competitive class on account of such duties no matter what salary they receive. It is also clear that these positions can not be graded nor grouped together solely on the basis of salary any more than the positions of engineer and architect could be so graded. Each such position must be put in a grade by itself. An increase in the salary of any one can in no sense be considered a promotion over any other in such position. Therefore, so far as the civil service regulations are concerned the salary of any such deputy may be increased to any sum deemed proper by the Attorney-General or the Legislature without taking such position out of the competitive class and without necessitating the calling of a promotion examination. Dated, May 4, 1912. THOMAS CARMODY, Attorney-General. To Hon. JOHN C. BIRDSEYE, Secretary, State Civil Service Commission, Albany, N. Y. 20 |