In the Matter of Gregory Floyd, Respondent,v.City of New York, et al., Appellants. (And Ten Other Proceedings.)BriefN.Y.September 11, 2014To be Argued by: STUART LICHTEN (Time Requested: 30 Minutes) APL 2013-00243 New York County Clerk’s Index Nos. 102673/12, 102601/12, 102602/12, 102603/12, 102604/12, 102605/12, 102606/12, 102607/12, 102608/12, 102447/12 and 102636/12 Court of Appeals of the State of New York In the Matter of the Application of GREGORY FLOYD, as President and on behalf of Local Union No. 237, I.B.T., et al., Petitioners-Respondents, For a Judgment Confirming an Arbitration Award Under Article 75 of the Civil Practice Law and Rules and for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – CITY OF NEW YORK, MICHAEL BLOOMBERG, as Mayor of the CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES and EDNA WELLS HANDY, as Commissioner of the NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents-Appellants. BRIEF FOR PETITIONERS-RESPONDENTS GENE DEMARTINO, et al. LICHTEN & BRIGHT, P.C. Attorneys for Petitioners-Respondents Gene DeMartino, et al. 475 Park Avenue South, 17th Floor New York, New York 10016 Tel.: (646) 588-4870 Fax: (646) 588-4877 Date Completed: December 26, 2013 TABLE OF CONTENTS QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . 2 FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT I. THE CIVIL SERVICE LAW REQUIRES A PUBLIC HEARING AND CIVIL SERVICE COMMISSION REVIEW BEFORE ALL RULE 5 MODIFICATIONS. . . . . . . . . . 5 A. Section 20. B. Appellants' Argument . . . . . . II. LABOR LAW SECTION 220 APPLIES TO GRADED EMPLOYEES . . . . . . . . A. The Legislature Has Overruled Corrigan B. This Court Should Overrule Corrigan . . 5 10 . . . . . 13 14 17 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 21 TABLE OF AUTHORITIES Acunci v. Ross, 73 A.D.2d 643, 422 N.Y.S.2d 745 (2d Dep't 1979) . . . . . .. . .... Auguti v. City Civ. Servo Comm'n, 9 Misc. 2d 349, 169 N.Y.S.2d 675 (Sup. Ct., N.Y. Cty. 1957) ... Bucci v. Village of Port Chester, 22 N.Y.2d 195, 201, 292 N.Y.S.2d 393,239 N.E.2d 335 (1968)).. . ... 12-13 6, 9 19 Buffalo Bldg. Trades Council v. Bd. of Ed. of City of Buffalo, 36 N.Y.2d 782, 369 N.Y.S.2d 693, 330 N.E.2d 643 (1975) .. 12, 15 Burri V. Kern, 180 Misc. 74, 36 N.Y.S.2d 640 (Sup. Ct., N.Y. Cty.), aff'd, 266 A.D. 841, 42 N.Y.S.2d 640 (1st Dep't 1943), aff'd, 291 N.Y. 776, 53 N.E.2d 242 (1944). .......... . ........... 6, 9 Casey v. Catherwood, 28 N.Y.2d 702, 320 N.Y.S.2d 750, 269 N.E.2d 408 (1971). 14-15 Cayuga-Onondaga Counties BOCES V. Sweeney, 89 N.Y.2d 395, 654 N.Y.S.2d 92, 676 N.E.2d 854 (1996) ..... 16 Corrigan v. Joseph, 304 N.Y. 172, 106 N.E.2d 593 (1952) ..... . DeMartino V. City of New York, 36 Misc. 3d 653, 948 N.Y.S.2d 552, (Sup. Ct., N.Y. Cty. 2012), aff'd, 106 A.D.3d 623, 965 N.Y.S.2d 714 (1st Dep't 2013) 7, 9, 14-19 . 4-5, 20 Floyd v. City of New York, 106 A.D.3d 623, 965 N.Y.S.2d 714 (1st Dep't 2013) . . . . . . . . . . . . . . . . 5 Joyce V. Ortiz, 108 A.D.2d 158, 487 N.Y.S.2d 746 ( 1 st Dept. 1985). ... . . . . . . 7 Matsa v. Wallach, 42 A.D.2d 1004, 348 N.Y.S.2d 222 (3d Dep't 1973) . . . . . . . . . . . . . 18-19 New York Charter Sch. Assoc. v. Smith, 15 N.Y.3d 403, 914 N.Y.S.2d 696, 940 N.E.2d 522 (2010) ............ 19 Slavin V. McGuire, 205 N.Y. 84, 98 N.E. 405 (1912) ........ . 9-10 Wright v. State of New York, 223 N.Y. 44, 119 N.E. 83 (1918) ......... . 14 STATE OF NEW YORK COURT OF APPEALS ---------------------------------------x In the Matter of the Application of GENE DeMARTINO, individually and as President of LOCAL 376, DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO; THOMAS KATTOU; FLOYD NESFIELD; LUTHER LAWTON; PATRICK McFARLAND; ANTHONY MEZZACAPPA; DANIEL COFFEY; and RICHARD GOSLIN, Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- CITY OF NEW YORK; MICHAEL BLOOMBERG, as Mayor of the CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; EDNA WELLS HANDY, as Commissioner of the NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; and JAMES HEIN, as Deputy Commissioner of the Division of Citywide Personnel of the NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents-Appellants. ---------------------------------------x Index No. 102447/12 BRIEF FOR PETITIONERS-RESPONDENTS This proceeding is brought by a municipal labor union and individual construction workers employed by respondent-appellant City of New York ("City"). The petition challenges the legality of two Personnel Orders significantly amending the City's rules 1 to reclassify all of the City's "prevailing rate" employees, approximately 10,000 employees in 106 titles, as "non-prevailing rate" employees, thoroughly overhauling a comprehensive system of classification that has well served the City for 119 years. Respondents-appellants ("appellants") desire to accomplish this tectonic shift with a stroke (or two) of the mayoral pen. State law, however, requires that the public be heard, and that the New York State Civil Service Commission ("Civil Service Commission") weigh in, before any such sweeping modifications become effective. The City's attempt to reclassify thousands of City workers is therefore illegal, arbitrary, and capricious, as the City "adopted" these amendments without any effort to comply with the procedural requirements of Civil Service Law § 20(2) ("Section 20"). QUESTION PRESENTED Whether the Appellate Division, First Department, correctly found that Section 20 requires the City to hold a public hearing on notice and obtain approval of the Civil Service Commission before embarking upon a massive reclassification of 106 titles comprising over 10,000 employees. 2 FACTS On April 11, 2012, respondent-appellant Michael Bloomberg, "[b]ased on a recommendation from" respondent-appellant Edna Wells Handy, Commissioner of respondent-appellant New York City Department of Citywide Administrative Services ("DCAS"), amended Rule X of the Personnel Rules and Regulations of the City of New York, by deleting the "Skilled Craftsman and Operating Service;" by reclassifying the titles formerly under the Skilled Craftsman and Operating Service into 14 new occupational services, including the "Infrastructure Maintenance Service;" and by making these 14 new occupational services subject to 14 new pay plans, including the "Infrastructure Maintenance Service Pay Plan." R. 2630-37. Employees in the title of Construction Laborer, such as petitioners-respondents Floyd Nesfield, Luther Lawton, Patrick McFarland, and Anthony Mezzacappa, formerly were included in the Skilled Craftsman and Operating Service. The annual salary for workers in this title is $77,105.60. After eight years of service, the workers received five weeks paid vacation. R. 2619. Pursuant to the amendments to the personnel rules, Construction Laborers are now contained within the new Infrastructure Maintenance Service. The minimum and maximum salary in that occupational service are $60,000 and $75,000 for "helpers," the category including Construction Laborers. R. 2641. Employees 3 with five years of service would receive three weeks paid vacation, and employees with eleven years would receive four weeks. R. 2647-49. Under New York State's prevailing wage law, Labor Law § 220 ("Section 220"), workers employed on public works projects, performing construction, repair, or maintenance work on City infrastructure, are required to be paid the locally prevailing rate of wages and benefits. In contrast to the City's prevailing rate employees, most City employees are paid instead according to a "career and salary plan" that sets minimum and maximum annual salaries for their job title, without reference to private sector pay rates. According to the City, the new salaries and benefits are applicable to employees in the 14 new pay plans, including Highway Repairers and Construction Laborers, hired after April 11, 2012. The City claims it will bargain with the appropriate unions regarding pay and benefits for the approximately 10,000 current City employees in the 14 new occupational services. R. 2619. Petitioners-respondents--Highway Repairers, Construction Laborers, and the President of their union--filed this petition to annul the Personnel Orders. Supreme Court, New York County, granted the petition, finding that "the changes proposed and implemented by the respondents" were "subject to the provisions of Civil Service Law Section 20." DeMartino v. City of New York, 4 36 Misc. 3d 653, 658, 948 N.Y.S.2d 552, 557 (Sup. Ct., N.Y. Cty. 2012). The First Department affirmed, finding that the City "issued rules" without complying with "the procedures mandated by Civil Service Law § 20, . which are applicable to those rules." Floyd v. City of New York, 106 A.D.3d 623, 623-24, 965 N.Y.S.2d 714, 715 (1st Dep't 2013). ARGUMENT I. THE CIVIL SERVICE LAW REQUIRES A PUBLIC HEARING AND CIVIL SERVICE COMMISSION REVIEW BEFORE ALL RULE MODIFICATIONS. A. Section 20 The requirements of Section 20 are straightforward. A local civil service commission or personnel director cannot adopt or modify local Civil Service rules without first holding a "public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose therefore." In addition, any changes to the Civil Service rules or plan "shall be valid and take effect only upon approval of the state civil service commission" and filing of the approved changes with the Secretary of State. Civil Service Law § 20(2). The reclassification of prevailing rate titles to career and salary plan titles is a modification of the City's Civil Service rules that is invalid if not done in conformance with the 5 procedural requirements of Civil Service Law § 20(2). Auguti v. City Civ. Servo Comm'n, 9 Misc. 2d 349, 169 N.Y.S.2d 675 (Sup. Ct., N.Y. Cty. 1957). In Auguti, the City tried to reclassify the title of Climber and Pruner, which was listed in Part 38 of the City's Civil Service classification plan, consisting of competitive class titles whose compensation is determined in accordance with Section 220. The Court held that the reclassification was not effective until approved by the State Civil Service Commission and that the affected employees remained prevailing rate employees until such time. 9 Misc.2d, at 351-52, 169 N.Y.S.2d, at 678-79. The establishment of grades or modification of existing grades "is a species of classification" and therefore subject to the procedural requirements of the Civil Service Law, including the "basic and substantial" requirement that the changes be approved by the State Civil Service Commission. Burri V. Kern, 180 Misc. 74, 36 N.Y.S.2d 640 (Sup. Ct., N.Y. Cty.), aff'd, 266 A.D. 841, 42 N.Y.S.2d 942 (1st Dep't 1943), aff'd, 291 N.Y. 776,53 N.E.2d 242 (1944). That is exactly what the City has attempted to do here. The requirements of Section 20 were cogently summarized in a Formal Opinion of the New York State Attorney General. 1998 N.Y. Op. Atty. Gen. 8, 1998 WL 111492, Formal Opinion No. 98-F3 (March 12, 1998). In this Formal Opinion, the Attorney General rejected DCAS's argument that it can establish new titles or reclassify 6 existing titles without holding a public hearing and without obtaining the approval of the State Civil Service Commission. After reviewing and sununarizing the relevant case law, statutory provisions, and legislative history, the Attorney General concluded that a DCAS resolution purporting to modify the City Personnel Director's Rules governing the classification of positions in the City's classified civil service is void unless the City complied with the notice, hearing, and Civil Service Commission approval requirements set forth in Section 20, noting that "courts have required strict compliance" with these procedural mandates. 1998 WL 111492 at *2; Corrigan v. Joseph, 304 N.Y. 172, 185, 106 N.E.2d 593, 598 (1952) (nullifying resolutions establishing grades for certain positions because approval of the State Civil Service Commission had not been obtained); Joyce v. Ortiz, 108 A.D.2d 158, 164, 487 N.Y.S.2d 746, 751-52 (pt Dept. 1985) (reversing the Supreme Court, granting the Article 78 petition, and nullifying resolutions reclassifying City titles and employees because the City failed to follow the procedures set forth in Section 20 regarding notice, a public hearing, and State Civil Service Commission approval). The City's shortcut is plainly unlawful. Section 20 provides: 1. Each municipal civil service commission shall prescribe, amend and enforce suitable rules for carrying into effect the provisions of [the Civil Service Law] and of section six of article five of the 7 constitution of the state of New York, including rules for the jurisdictional classification of the offices and employments in the classified service under its jurisdiction, for the position classification of such offices and employments, for examinations therefor and for appointments, promotions, transfers, resignations and reinstatements therein . ... Nothing in this chapter or any other law shall be construed to require that positions in the competitive class be specifically named or listed in such rules, or that the salary grade to which a position in any jurisdictional class is allocated be specified in such rules. 2. Such rules, and any modifications theLeof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof .... The rules and any modifications thereof adopted by a city civil service commission . . . shall be valid and take effect only upon approval of the mayor . . . and the municipal civil service commission . . . and the state civil service commission . ...... Any such rule or modification thereof shall be filed with the secretary of state within thirty days after final approval thereof by the state civil service commission. Such rules shall have the force and effect of law when filed with the secretary of state. Civil Service Law § 20 (emphasis added). The Rules of the Commissioner of Citywide Administrative Services, also referred to as the Personnel Rules and Regulations of the City of New York, are codified at Title 55, Appendix A, of the Rules and Regulations of the City of New York. Those rules "are adopted pursuant to the procedures specified in the Civil Service Law, § 20, subdivision 2." 55 RCNY App. A, n.l. Rule X is entitled, "Classification of Positions Not Included in the Career and Salary Plan or in the New York City Housing Authority 8 Classification Plan." This is the rule respondents now purport to modify. The two mayoral orders attempt to "amend" Rule X, described as the "classification of the Classified Service of the City of New York," by "deleting" one classification and "reclassifying the titles thereunder as indicated herein" into 14 new classifications. R. 2631. Even the internal memorandum offered by respondents states, "DCAS proposes that titles . . be reclassified to one of fourteen new graded services under Rule X . fI R. 2676. The creation of 14 new service classifications and four new levels within each service classification, the abolition of a service classification, and the creation of a new pay plan, are amendments subject to the procedural prerequisites of Section 20. This huge change in DCAS's regulations is certainly a "modification" of the "rules for carrying into effect the provisions of" the Civil Service Law. This Court, and others, have so interpreted Section 20 since at least 1912. Corrigan, 304 N.Y., at 185, 106 N.E.2d, at 598; Auguti, 9 Misc. 2d, at 349, 169 N.Y.S.2d, at 675; Burri, 180 Misc., at 74, 36 N.Y.S.2d, at 640. This Court ruled that "the public should have the opportunity to be heard" on "an amendment of the civil service rules . . purporting to grade certain 9 positions in the classified service." Slavin v. McGuire, 205 N.Y. 84, 86, 89, 98 N.E. 405, 406-07 (1912). By the amendment of the classification in the competitive class, the con~ission arranged positions in the civil service under a number of "parts," in each "part" grouping, classifying, or grading them according to the employment, or the nature of the duties to be performed. . The method is pursued of collecting under each "part" the various offices to be filled, arranged in classes, or in groups, or, simply, by the name given to the position, and as to all of these positions grddaLions are established according to the annual compensation fixed for each. In performing this work of classification, the commissioners sought to carry into effect the provisions of the Constitution (article 5, § 9), and of the Civil Service Law, which had in view the making of "appointments and promotions in the civil service. . , " Id., at 89-90, 98 N.E., at 407 (emphasis added). This "work of classification" is strikingly similar to what respondents here are trying to accomplish. B. Appellants' Argument Appellants claim that this Court's prior holding, that reclassifying titles from prevailing wage to non-prevailing wage requires compliance with Section 20, "has been expressly superseded by statute." Appellants' Brief ("App. Br.") 3. The actual language of the statute says no such thing, but only that specific names of positions and salary figures need not be included in the rules. The rules changes and massive reclassifications proposed here are a far cry from simple names and numbers. 10 Not surprisingly, the language of the statute plainly expresses the legislative intent. The explanatory memorandum accompanying the bill explains, "There is no worthwhile purpose served in listing competitive class job titles in the rules. The prescribing of standard titles for competitive class positions is purely an administrative matter and not one that should require the promulgation and amendment of rules." The memorandum goes on to note, "There is even less reason for specifying the salaries and salary grades of positions in the rules." Governor's Bill Jacket, Laws of 1960, Ch. 73, Explanatory Memorandum of the State Civil Service Department, at 7. DCAS therefore is spared the task of listing job titles and salary amounts in the rules and regulations. Wholesale restructurings of the classification system itself, however, are another story. The memorandum explains, "Obviously the rules were intended to cover matters which are truly legislative in character rather than pronouncements or determinations of a routine administrative nature." Id., at 6. Ending a classification system that has endured over a century is, almost by definition, not "routine." Altering the procedures for determining employment conditions for about 10,000 workers in over 100 titles is hardly "administrative." The cases cited by appellants do not mention Section 20, and therefore do not support either party's position. App. Br., at 11 18 (citing Buffalo Bldg. Trades Council v. Bd. of Ed. of City of Buffalo, 36 N.Y.2d 782, 369 N.Y.S.2d 693, 330 N.E.2d 643 (1975); Acunci v. Ross, 73 A.D.2d 643, 422 N.Y.S.2d 745 (2d Dep't 1979) ). Appellants' reliance on legislative history, moreover, confirms that while "there is no purpose in having the State review and approve salary grades or changes to . titles," App. Br., at 23, there is a resounding purpose in allowing affected parties to be heard where significant changes in the rules are proposed. Finally, the City's reference to a vetoed bill from 2001 makes no sense at all. This proposal provided, No municipality shall administratively reclassify by local law or rule, regulation or otherwise any persons who have been deemed subject to the prevailing rate and supplements defined in Article 8 of the Labor Law without providing proper notice to the impacted parties herein, and without amending the rules of the municipality in the manner set forth in section 20 of the civil service law. S4011/A6689 (2001). A legislative memorandum from the State Civil Service Department states, "In the event an amendment to the rules becomes necessary to effect a reclassification, section 20 provides that the rule shall be adopted only after a public hearing, notice of which has been published for not less than three days . . Since the current notice requirements appear adequate, we feel the additional notification requirements will unreasonably delay the reclassification process." Memorandum from James M. McGuire, at 9. Even the history cited 12 by the City, the Governor's Veto Message, explains that the bill merely "seeks to prevent such reclassification from occurring when the employer gives little or no notice to the public employees," saying nothing about notice to the general public and a hearing. App. Br., at 21. Therefore, it was acknowledged by all concerned that reclassification of prevailing wage employees to graded necessitated the procedural safeguards of Section 20. Appellants' proposed amendments go to the heart of Civil Service protections, and cannot be treated like a title change from Traffic Control Agent to Traffic Enforcement Agent, or a $500 increase in a salary range. These are not technical changes. They are serious modifications of Civil Service rules. The Personnel Orders adopted by DCAS on April 11, 2012, purporting to reclassify the City's prevailing wage employees as Career and Salary Plan employees, are null and void because the procedural requirements of Section 20 were ignored. The City did not issue the required notice. The City did not hold the required hearing. And the Civil Service Commission has not approved the changes. Under settled legal principles, the Personnel Orders must be annulled. II. LABOR LAW SECTION 220 APPLIES TO GRADED EMPLOYEES. Appellants' failure to comply with Civil Service Law hearing and review requirements should be dispositive in this matter, 13 annulling the mayoral orders. Those orders should be overturned for other reasons as well. A. The Legislature Has Overruled Corrigan. The New York State Constitution provides that the "[l]abor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed. n N.Y. Const., Art. I, § 17. To that end, in 1894, the Legislature enacted what is now Section 220 of the Labor Law, mandating that the "wages to be paid for a legal day's work, as hereinbefore defined, to laborers, workmen, or mechanics upon [any] public works, shall be not less than the prevailing rate of wages as hereinafter defined. n Labor Law § 220(3). This Court soon found Section 220 applicable to public employers. Wright v. State of New York, 223 N.Y. 44, 47, 119 N.E. 83, 84 (1918). In 1952, however, over a vigorous dissent, this Court ruled that graded employees were exempt from Section 220 requirements. The Court held that any other policy "is one to be made by legislative action, not by the judicial process. n Corrigan, 304 N.Y., at 183, 106 N.E.2d, at 597. The Court revisited the issue in 1971, affirming that public employees in "graded positions of civil service . . . were exempt from that statute relating to determination of prevailing wage rates in the locality." Casey 14 v. Catherwood, 28 N.Y.2d 702, 703, 320 N.Y.S.2d 750, 269 N.E.2d 408 (1971). Later that year, the State Senate and Assembly took the "legislative action" invited by the Court, and passed Assembly Bill Number 6l73-A. The bill would have amended Section 220 to allow an employee organization representing "a majority of laborers, workmen, or mechanics in a particular civil service title" to file a complaint, upon which the Comptroller "must . . . cause an investigation to be made to determine the prevailing rate of wages . " Governor Rockefeller vetoed the bill. The Governor's Veto Memorandum read, in its entirety: The bill would authorize employee organizations to file a single verified complaint on behalf of its members who are workmen, laborers, and mechanics in a particular civil service title under section 220 of the Labor Law, the prevailing wage section. In Corrigan v. Joseph, 304 N.Y. 172 (1952), the Court of Appeals held that municipal employees in graded positions in the competitive class of civil service may not have their wages determined by the prevailing wage formula and the procedure described in section 220 of the Labor Law. This measure would be construed to overrule the holding of the Corrigan case and should, therefore, be disapproved. The Department of Civil Service and the Division of the Budget are among those who have recommended disapproval of the bill. Governor's Veto Jacket, Laws of 1971, Veto No. 305. In 1975, the Court of Appeals reaffirmed the rule. Buffalo Bldg. Trades Council. 15 In 1976, the Legislature passed an amendment to Section 220 almost identical to A-6173. The Division of the Budget wrote: In a landmark case (Corrigan v. Joseph, 304 N.Y. 172 (1952)) employees in "graded" positions in the civil service are relegated to whatever remedies are available to them in the Civil Service Law; they do not have recourse to the prevailing wage provision of the Labor Law. The present measure appears to be a "back door" attempt to apply the prevailing wage provision of the Labor Law to the graded salary plan provisions of the Civil Service Law . Governor's Bill Jacket, Laws of 1976, Ch. 933. Governor Carey signed the bill into law. The amendment is codified as Labor Law § 220 (8-d) . This Court has not since reaffirmed Corrigan, and refused to extend the exemption in 1996. Cayuga-Onondaga Counties BOCES v. Sweeney, 89 N.Y.2d 395, 654 N.Y.S.2d 92, 676 N.E.2d 854 (1996). The statutory change, indeed, has effectively overruled Corrigan. Public employers are now required, at least within the City of New York, to "in good faith negotiate and enter into a written agreement with respect to the wages and supplements of the laborers, workmen, or mechanics in the title," and if the "parties fail to achieve an agreement," the employee organization may file a complaint with the Comptroller that the public employer is not paying prevailing wages, whether or not the employees are in a "graded" status. Labor Law § 220(8-d). 16 B. This Court Should Overrule Corrigan. Even aside from this "legislative action," the factual underpinnings of Corrigan have disappeared. This Court exempted graded employees from Section 220 because the "rate of pay" of "all employees whose work fell within a given prevailing wage rate . . would rise and fall with such prevailing rate, and corresponding automatic promotions or demotions would occur without regard for the employee's experience, or the type and quality of work performed by him." Corrigan, 304 N.Y., at 182, 106 N.E.2d, at 596. The Court based its prediction of "automatic promotions" on what is now Civil Service Law § 52(9): "[AJn increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder, beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion." This provision, however, thanks to intervening enactments and interpretations, has never resulted in "automatic promotions." The Personnel Rules promulgated by DCAS provide, (a) No promotion shall be made. . unless specifically authorized by the commissioner of citywide administrative services, nor shall a person be promoted. . unless the person has passed the examination and is eligible for appointment to such higher position or title. (b) An increase in the salary or other compensation of any person .. beyond the limit fixed for the grade of such position . shall be deemed a 17 promotion except as provided otherwise in a labor contract, a labor relations order or personnel order and be subject to the prohibition of this paragraph. 55 RCNY § A, at Rule 5.3.2 (emphasis added). This rule, through the use of consent determinations, collective bargaining agreements, career and salary regulations, and other means, precludes the precise events which this Court sought to avoid. For example, if the prevailing wage for Construction Laborer exceeded the wage for the next highest level supervisory position (a circumstance which has actually occurred), Construction Laborers will not be (and have not been) promoted. Even if salary grades are established for the supervisors, a prevailing wage resulting in an increase over the maximum supervisor pay level will not result in an automatic promoLion for the Construction Laborers, allaying this concern of the Corrigan Court. The Personnel Rule has never been questioned. Indeed, other courts have formulated similar rules. The Third Department, for instance, has held, "The purpose of subdivision 9 of section 52 is to prevent favored but unqualified employees from receiving salary increases without having received lawful promotions. By declaring that such salary increases shall be 'deemed' promotions, the Legislature has effectively invalidated any such increase where the prerequisites for promotion have not been fulfilled." Matsa v. Wallach, 42 A.D.2d 1004, 1005, 348 N.Y.S.2d 18 222, 224 (3d Dep't 1973) (emphasis added). The central rationale for Corrigan, therefore, is no longer present. More importantly, Corrigan found that requiring payment of prevailing wages "would discard procedure which, for more than sixty years, has contributed largely to the successful administration of the merit system in this State." Corrigan, 304 N.Y. 172, 182-83, 106 N.E.2d, at 596-97. This Court noted that "grading" was "imbedded .. deeply in the public policy of this State.. " Id., at 183, 106 N.E.2d, at 597. That passage may have correctly depicted the public employment landcape in 1952, but now the situation is reversed. Section 220 has been applied to these 10,000 workers for well over 100 years, while they have never been graded. It is now Section 220 which is seen as "an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen, and mechanics," and which therefore "must be construed with the liberality needed to carry out its beneficent purposes." New York Charter Sch. Assoc. v. Smith, 15 N.Y.3d 403, 412, 914 N.Y.S.2d 696, 701, 940 N.E.2d 522, 527 (2010) (Lippman, C.J., dissenting) (citing Bucci v. Village of Port Chester, 22 N. Y. 2d 195, 201, 292 N.Y.S.2d 393, 397, 239 N.E.2d 335, 338 (1968)). It is now the City which seeks to "uproot" an established system which is "imbedded" in municipal public policy. It is now the 19 City which is proposing radical change which should come about, if at all, through legislative action. The merits and legality of appellants' proposed changes, however, can be debated in other venues, such as the mandated public hearing or the required Civil Service Commission review. As the Court below noted, Section 20 "requires notice, hearing, and approvals to promote consistency and statewide adherence to the constitution .... " DeMartino, 36 Misc. 3d, at 655, 948 N.Y.S.2d, at 555. The two mayoral personnel orders should be annulled on the grounds outlined in Section I above. If the City desires to press these issues, it should do so in the democratic, transparent manner laid out by the Civil Service Law. 20 CONCLUSION The Order and Judgment of Appellate Division, First Department, should be affirmed. Dated: New York, New York December 26, 2013 By: 21 LICHTEN & BRIGHT, P.C. Attorneys for Petitioners- Respondents Stuart Lichten 475 Park Avenue South - 17th Floor New York, New York 10016 (646) 588-4872