Sauer v. Connelie

Mikoll, J.,

dissents and votes to reverse in the following memorandum; Main, J., not taking part. Mikoll, J. (dissenting). I respectfully dissent. Article 8 of the Retirement and Social Security Law is entitled "Policemen’s and Firemen’s Retirement System Act.” By definition contained in section 302 (subd 11, par a) of the Retirement and Social Security Law, "Police or fire service” includes "Service as an officer or member of the state police force in the executive department.” The various retirement plans for members of the Department of State Police are contained in article 8 of the Retirement and Social Security Law, which includes section 402. This section applies to all policemen and firemen, including members of the Division of State Police. To conclude that section 402, because it refers to "the state civil service department or appropriate civil service commission”, excludes the Division of State Police from its purview, is overly technical. Appointments to the State Police are made by the Superintendent of the State Police and not a civil service commission. We note that appointments to the division are subject to the Civil Service Law and the civil service provisions of the New York State Constitution (NY Const, art V, § 6; Matter of Andresen v Rice, 277 NY 271; Matter of Ruddy v Connelie, 61 AD2d 372). When section 402 was enacted, it was clear that appointments to the Division of State Police rested in the hands of the superintendent. If the Legislature intended to exclude the Division of State Police from section 402 of article 8, it would have said so. There is no "uniqueness” attendant to the position of State trooper which would set this service apart from service rendered in the communities of our State by its various police forces (Matter of Andresen v Rice, supra). These police forces are subject to competitive examinations and their members discharge the same criminal and penal functions as do State troopers. Section 402 of the Retirement and Social Security Law applies to the petitioner. Respondent was, therefore, required by mandate of section 402 to place petitioner’s name on the preferred eligible list when he was appropriately certified by the Comptroller as able to engage in gainful occupation. The judgment should be reversed and the matter remitted for further action in conformity with this opinion.