text:
    In the Matter of James E. Doolan, Appellant, v Board of Cooperative Educational Services, Second Supervisory District of Suffolk County, Respondent.
    Argued October 10, 1979;
    decided November 27, 1979

      POINTS OF COUNSEL

      Peter L. Rupert and Susan S. Boochever for appellant.
    I. Release of the information requested is authorized by the statute. The negotiation information services study comes within the purview of the Freedom of Information Act (Public Officers Law, art 6). (Matter of Gannett Co. v County of

      Monroe, 90 Misc 2d 76; Matter of Dunlea v Goldmark, 54 AD2d 446; Cirale v 80 Pine St. Corp., 35 NY2d 113.) II. Disclosure of the requested information will not affect collective bargaining negotiations.

      Peter V. Snyder for respondent.
    I. The statute does not mandate the release of the materials demanded by the union. (Matter of McAulay v Board of Educ., 61 AD2d 1048; Matter of Demisay, Inc. v Petito, 31 NY2d 896; Matter of Delaney v Del Bello, 62 AD2d 281; Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234.) II. The data is a service rendered by BOCES to subscribing school districts and is not covered by the statute. (Matter of Trauernicht v Board of Coop. Educational Servs. of Nassau County, 95 Misc 2d 394.) III. Release would be contrary to public policy. (Cirale v 80 Pine St. Corp., 35 NY2d 113; Jones v State of New York, 58 AD2d 736; Matter of Lambert v Barsky, 91 Misc 2d 443; Matter of Police Benevolent Assn. of N. Y. State Police v Helsby, 84 Misc 2d 17; Matter of Fitzpatrick v County of Nassau, Dept. of Public Works, 83 Misc 2d 884.) IV. BOCES is prohibited by the Constitution from giving this data to private parties. (Fox v Employers’ Liab. Assur. Corp., 267 NY 609; Matter of Andrus, 85 Misc 2d 1062.)
   OPINION OF THE COURT

Meyer, J.

This appeal requires us once again to construe the Freedom of Information Law (Public Officers Law, art 6). The primary issue is whether that law excepts from its disclosure requirement salary and fringe benefit data compiled by one agency for the use and information of another. We hold that it does not.

Respondent Board of Cooperative Educational Services (BOCES) prepares an annual report, entitled "Negotiation Information Services Salary Study for Administrators”, which compiles salary data and fringe benefits for teachers and administrators of the Second Supervisory District of Suffolk County. The salary study is part of the negotiations information services provided by BOCES to member school districts, including reports published monthly on negotiating developments throughout Suffolk County and answers to individual requests for data made by such districts.

Petitioner, by a letter which identified him as a resident of Suffolk and. the president-elect of the School Administrators Association of New York State, asked that a copy of the compilation for the years 1974 through 1977 be made available to him. Being informed by the director of the BOCES service that it was a subscription service not available to others than the member districts, petitioner appealed pursuant to the Public Officers Law and, having received no answer to his appeal within the time required by statute, brought the article 78 proceeding which is the subject of this appeal.

BOCES’ answer admitted the request, its denial of the request and the appeal, but asserted as an affirmative defense that the service was the co-operative effort of the member districts, supplied (at a cost of $32,400) only to those districts that paid for the service, which petitioner was attempting to acquire, without cost, in violation of sections 1950 and 1951 of the Education Law. Special Term held that though the Freedom of Information Law did not require that BOCES compile the information, it did require that it disclose the information, once compiled, at a fee covering the cost of a transcript only. On appeal to the Appellate Division, Second Department, that court unanimously reversed on the law and dismissed the proceeding, reasoning that a report offered only on a subscription basis is not within the purview of the law (64 AD2d 702). This appeal as of right by petitioner followed. We reverse.

The provisions of the governing statute are to be found in sections 84 and 87 of the Public Officers Law.

In pertinent part, section 84 reads as follows:

"The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.
* * *
"The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.
"The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.”

Section 87 (subd 1, par [b], cl iii) requires that an agency’s rules provide for either a fee of 25 cents per photocopy or the actual cost, depending on size, unless a different fee is prescribed by law, and subdivision 2 of section 87 requires that all records be made available for public inspection and copying, except that access may be denied as to records which:

"(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
* * *
"(g) are inter-agency or intra-agency materials which are not:
"i. statistical or factual tabulations or data;
"ii. instructions to staff that affect the public; or
"iii. final agency policy or determinations”.

The arguments advanced by respondent against disclosure are that the information is not obtainable from BOCES because it determines no policy, that the Education Law makes the information available only to school districts that pay for it, that disclosure is contrary to section 87 (subd 2, par [c]) and to public policy, and that disclosure would constitute an unlawful contribution of public funds contrary to section 1 of article VIII of the Constitution.

Nothing in either section 84 or 87 requires that the agency from which information is sought be the agency making the decision to which the information relates. The contrary intent is clear from the general language by which reference is made in section 84 to "governmental decision-making” and to "statistics leading to determinations’ ’ and from the requirement of section 87 that, with explicitly stated exceptions, "all records” be made available. Furthermore, the reference in former section 88 (subd 1, par d) to "tabulations made by or for the agency” (emphasis supplied) and the limited exception for "inter-agency or intra-agency materials which are not: (i) statistical or factual tabulations” (emphasis supplied) in present section 87 (subd 2, par [g]) make pellucidly clear that the fact that BOCES policy is not involved is no bar to obtaining the data from that agency (cf. Matter of Dunlea v Goldmark, 54 AD2d 446, 449, affd on opn below 43 NY2d 754; see Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181).

Behind respondent’s Education Law argument is the spectre that other school districts within the supervisory district may use the Freedom of Information Law to seek to obtain without payment that which they cannot obtain under the Education Law unless they pay a proportionate share of the cost. The short answer is that petitioner is not such a district and that it will be time enough to resolve any conflict between the Education Law and the Public Officers Law when a school district seeks to use the latter law to avoid the restriction of the former. Respondent has not suggested that petitioner’s request is made in the interest of any other school district. Short of such a showing, the argument is one to be addressed to the Legislature as a possible reason for amending the Freedom of Information Law but, contrary to the Appellate Division’s holding, furnishes no basis for denial of petitioner’s application.

Though the burden is upon an agency claiming to be within one of the specific exceptions to section 87’s "all records” requirements to demonstrate application of the exception (Matter of Fink v Lefkowitz, 47 NY2d 567, 571; Matter of Gannett Co. v County of Monroe, 59 AD2d 309, affd on opn below 45 NY2d 954; Public Officers Law, § 89, subd 4, par [b]), respondent has made no effort in its papers to show that disclosure of the data requested would impair present or imminent collective bargaining within the meaning of section 87. Respondent’s brief argues that petitioner requested its entire negotiations information services, which includes reports on negotiating developments that arguably could be within the statutory exception, but it is clear from petitioner’s letter of request and from the judgment appealed from that all that was sought and all that has been ordered disclosed is the factual compilation referred to as the “NIS Salary Study For Administrators”. There is, therefore, no substance to respondent’s section 87 argument (Church of Scientology v State of New York, 46 NY2d 906; cf. Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181-182, supra).

It does not appear that either the public policy argument or that based upon the Constitution was presented to the courts below. They, therefore, need not be reached by us. We have, however, considered both and find them to be without substance. The public policy concerning governmental disclosure is fixed by the Freedom of Information Law; the common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed (cf. Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra). Nothing said in Cirale v 80 Pine St. Corp. (35 NY2d 113) was intended to suggest otherwise. No greater weight can be given to the constitutional argument, which would foreclose a governmental agency from furnishing any information to anyone except on a cost-accounting basis. Meeting the public’s legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds.

For the foregoing reasons, the order of the Appellate Division should be reversed and the judgment of Special Term should be reinstated.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur with Judge Meyer; Judges Jasen and Jones dissent and vote to affirm for reasons stated in the memorandum at the Appellate Division (64 AD2d 702).

Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated.

      . The Freedom of Information Law was repealed and re-enacted effective January 1, 1978 after the Special Term decision, with differences in wording not material to the decision of the instant case. However, since the statute in effect at the time of our decision governs (Matter of Demisay, Inc. v Petito, 31 NY2d 896; Strauss v University of State of N. Y., 2 NY2d 464, 467), we quote in the text the present wording and section numbering of the Freedom of Information Law.

      . Former section 85 was identical in language except that the concluding clause was "and that the public, individually and collectively and represented by a free news media, should have unimpaired access to the records of government”. (L 1974, ch 578.)

      . Former section 88 (subd 1, par d) required the agency to make available "internal or external audits and statistical or factual tabulations made by or for the agency”. (L 1974, ch 578.)

      . Sections 1950 and 1951 of the Education Law to which respondent refers regulate the relationship between the constituent school district and the BOCES supervisory district, but do not purport to deal directly with information disclosure.


source: Caselaw Access Project

author: Chief Judge Cooke. Meyer, J.

license: Public Domain

text:
    Howard Corning, Jr., et al., Appellants, v Village of Laurel Hollow, Respondent.
    Argued September 11, 1979; reargued November 12, 1979;
    decided November 21, 1979

      POINTS OF COUNSEL

      Gerard A. Dupuis and Christopher G. FitzPatrick for appellants.
    I. The Appellate Division, in reversing the court below, mistakenly relied upon decisions which have no application to the circumstances of the case at bar. (Buckley v City of New York, 170 Misc 412, 264 App Div 116, 289 NY 742; Seif v City of Long Beach, 286 NY 382; Cahn v Town of Huntington, 29 NY2d 451.) II. Plaintiffs, having acted at all times as agents of the village, must be reimbursed by their principal for expenses incurred as a result of their good faith execution of the agency, as a matter of law. (Cohn v Lionel Corp., 21 NY2d 559; Buckley v City of New York, 170 Misc 412, 264 App Div 116, 289 NY 742; Laverne v Corning, 522 F2d 1144; Traeger v

      Farragut Gardens No. 1, 201 Misc 18; Geltzer v Russell, 49 AD2d 823; Jones v State of New York, 33 NY2d 275; McCrink v City of New York, 296 NY 99; Burns v City of New York, 6 AD2d 30; McCleod v Dean, 270 F Supp 855; Bohan v Port Jervis Gaslight Co., 122 NY 18.)

      Thomas A. Shaw, Jr., and Robert R. Elliott, III, for respondent.
    I. The refusal of the village board of trustees to authorize or ratify the retainer of plaintiffs’ counsel bars recovery. (Seif v City of Long Beach, 286 NY 382; Cahn v Town of Huntington, 29 NY2d 451; New York Tel. Co. v Town of North Hempstead, 41 NY2d 691; Leo v Barnett, 48 AD2d 463, 41 NY2d 879.) II. In any event, recovery by plaintiffs is barred by section 1 of article VIII of the New York Constitution. (Buckley v City of New York, 170 Misc 412, 264 App Div 116, 289 NY 742.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question here is whether certain former high-ranking officials of the Village of Laurel Hollow are entitled to reimbursement from the village of their costs, disbursements and legal fees incurred in asserting a successful defense to a civil rights action brought against them as a result of acts performed in their official capacities. Reversing Special Term, the Appellate Division held that in the absence of express authority to employ counsel, plaintiffs were not entitled to recover legal fees from the village. There should be an affirmance. Without the benefit of authorizing legislation, reimbursement by the village of these expenses would constitute a gift of public funds for a purely private purpose, a matter expressly forbidden by our Constitution (NY Const, art VIII, § 1).

The present action finds its genesis in a long-standing conflict between the village and two of its residents, Erwine and Estelle Laverne. In 1954, this court affirmed an order of the Appellate Division which enjoined the Lavernes from using their property, located in a residential zone, for commercial purposes (Incorporated Vil. of Laurel Hollow v Laverne Originals, 307 NY 784, affg 283 App Div 795). Matters proceeded peacefully until 1962, when, pursuant to the authority of the village zoning ordinance, plaintiffs, the former Mayor, trustees, building inspector and a police officer of the village, conducted three warrantless searches of the Laverne home to ascertain whether there were zoning violations on the premises. Judgments imposing both civil and criminal penalties against the Lavernes were subsequently reversed on the ground that the warrantless searches were unconstitutional (Incorporated Vil. of Laurel Hollow v Laverne Originals, 17 NY2d 900; People v Laverne, 14 NY2d 304).

Some years later, the Lavernes instituted a Federal civil rights action (US Code, tit 42, §§ 1981-1983) against plaintiffs, all of whom had, by this time, discontinued their relationship with the village. The complaint in that action alleged that plaintiffs, while acting under color of State law in their official capacities as officers and officials of the village, had violated the constitutional rights of the Lavernes by unlawfully entering their home and conducting illegal searches and seizures upon entry (see Bivens v Six Unknown Fed. Narcotics Agents, 403 US 388). The village was not joined as a party in the Federal action, since under then-existing precedent it was not amenable to suit (see Monroe v Pape, 365 US 167).

Although the reason does not appear on the record, plaintiffs were initially represented by the Nassau County Attorney, presumably at county expense. However, immediately after the Federal District Court granted the Lavernes summary judgment on the issue of liability (Laverne v Corning, 316 F Supp 629), plaintiffs dismissed the Nassau County Attorney and, on their own initiative, privately retained a prestigious Wall Street law firm as counsel. Throughout the pendency of the Federal action, plaintiffs kept the village apprised of their intention to hold it responsible for the cost of their defense. When the representation of substituted counsel ultimately led to final dismissal of the Laverne action (Laverne v Corning, 376 F Supp 836, affd 522 F2d 1144), plaintiffs instituted this action to recover from the village the legal fees, costs and disbursements they had incurred following their dismissal of the Nassau County Attorney.

Plaintiffs do not quarrel with the proposition that, in the absence of extraordinary circumstances not present here, a municipality may not be compelled to compensate for services rendered by an attorney unless his retainer is authorized by statute or appropriate resolution of the governing body (e.g., Cahn v Town of Huntington, 29 NY2d 451, 454-455; Seif v City of Long Beach, 286 NY 382, 386-387; Lyddy v Long Is. City, 104 NY 218, 222-223; 10 McQuillin, Municipal Corporations, § 29.11). The rationale underlying this rule — to guard against extravagance and collusion on the part of public officials — is aptly illustrated by the circumstances here. Dissatisfied with their representation by the Nassau County Attorney, plaintiffs summarily dismissed him and retained one of the more esteemed and, as this record bears out, costly, New York law firms. This, of course, they had every right to do. But this does not mean that the village must underwrite the consequences of plaintiffs’ choice. Were this construction to be adopted, it would enable all public officials to employ counsel whenever it is deemed desirable and, thus, unilaterally empower them to create municipal debt. Allowing these plaintiffs reimbursement would result in a drastic departure from the safeguards erected about the disposition of public funds and would invite invasions of the public fisc for purely personal benefit. Having chosen to forsake the representation gratuitously provided them, plaintiffs may not now seek public funds to alleviate the cost of that selection (see People ex rel. Van Keuren v Board of Town Auditors of Town of Esopus, 74 NY 310, 313-314).

Indeed, as a practical matter, here there is not even involved a question of entitlement to payment to an attorney who has rendered service to a municipality but who had not been retained in accordance with statute. Rather, these plaintiffs were sued personally for their actions in office and their attorneys performed no services for the village. This case, therefore, does not concern whether plaintiffs’ law firm is entitled to its fees, but rather who is responsible for their payment. There is no question that if plaintiffs’ law firm had sued the village for fees for services rendered on behalf of plaintiffs, recovery would be denied (Seif v City of Long Beach, supra). This result may not be altered by the simple expedient of substituting plaintiffs as a party for the law firm (see Leo v Barnett, 41 NY2d 879, affg 48 AD2d 463, 464).

Plaintiffs admit that their attorneys were never retained by the village. Instead, they seek to assert some obscure common-law right to reimbursement based upon a novel theory of agency. This argument proceeds on the premise that in conducting the searches, plaintiffs were acting as mere agents for the village, their principal. Since agents are entitled to be indemnified for any damages they suffer as a result of following the directions of their principal, the village must assume plaintiffs’ attorney’s fees. There is, however, a major practical difficulty in accepting this argument. With the exception of Meehan, plaintiffs simply were not low-level officials executing facially valid directions of their superiors. Rather, they were the very people in whom the decision to search the Láveme home was vested and, thus, are more properly characterized as principals (see Village Law, §§ 3-301, 4-400). Indeed, the underpinnings of the Federal action were not grounded on plaintiffs following the orders of a superior, but on the implementation of a policy over which they alone had control (cf. Restatement, Agency 2d, § 14 C). Hence, there is no principal involved to whom the plaintiffs may look for reimbursement.

On an even more fundamental level, any payment by the village to plaintiffs for their previously incurred costs would run afoul of the constitutional prohibition against gifts of public funds to assist a purely private purpose (NY Const, art VIII, § 1). Well settled is the proposition that a municipality may expend its funds only to meet its lawful obligations incurred as a result of the performance of its governmental functions (Union Free School Dist. v Town of Rye, 280 NY 469, 474). Conversely, a governmental entity may not compensate a person who performs an act which the government had no duty to undertake (Matter of Guarino v Anderson, 259 NY 93, 95-96).

One of the risks traditionally associated with the assumption of public office is that of defending oneself against charges of misconduct at one’s own expense (Matter of Chapman v City of New York, 168 NY 80, 85-86) The public owes no duty to defend or even aid in the defense of such a charge. As was said in Matter of Chapman (supra, at p 86): "Whoever lives in a country governed by law assumes the risk of having to defend himself without aid from the public, against even unjust attempts to enforce the law, the same as he assumes the burden of taxation * * * Asking for aid to pay the expenses of a defense already made from one’s own resources, is like asking for aid in the payment of taxes or the discharge of any public burden. It is not a city or county purpose, but a mere gift” (see, also, Leo v Barnett, supra; Buckley v City of New York, 289 NY 742, affg 264 App Div 116; Matter of Guarino v Anderson, supra; Matter of Kilroe v Craig, 238 NY 628, affg 208 App Div 93; 17 Opns St Comp, 1961, p 125; 12 Opns St Comp, 1956, p 479).

This is not to question the power of the municipality to enact an ordinance empowering it to defend its officials who in the future may be charged with violating the law in the performance of their duties. Such a considered policy decision would raise no constitutional objections, for the cost of the defense would simply be considered additional remuneration (Matter of Guarino v Anderson, supra, at pp 95-96; Matter of Deuel v Gaynor, 141 App Div 630, 631-632). But plaintiffs point to no statute or ordinance empowering the village, in the discretion of its governing body, to assume the responsibility of their defense. Rather, they seek an order declaring that the village must reimburse them for expenses previously incurred — expenses which vindicated their interests alone. It is precisely this result which our Constitution prohibits.

In short, the simple fact is that the dispute in the Federal action was a purely private one between plaintiffs, in their individual capacities, and the Lavernes. The pecuniary or proprietary interests of the village were in no way implicated. As the village had no connection with the suit, no obligation, either legal or moral, arose on its part to make good the expenses plaintiffs had incurred. A municipality, and by extension the public, is under no obligation to reimburse its officers for legal expenses incurred in defense of allegations of misconduct in office. In these circumstances, there can be no reimbursement from the municipality for expenditures incurred in serving a purely private purpose.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting in part). While I agree that plaintiffs are not entitled to reimbursement for the fees of their substituted attorneys or for the fees incurred in prosecuting the present action, I conclude that they are entitled to reimbursement from the village for the reasonable value of the expenses incurred by them in defending the Laverne action, for which they have not already been reimbursed by the award of costs to them in that action. The premises for that conclusion are: (1) since plaintiffs acted in their official capacity and in good faith they were entitled to be defended at the expense of the village, (2) the village had the authority to and did in fact provide plaintiffs with a defense by enlisting the County Attorney pursuant to applicable statutory provisions, (3) having been provided with counsel by the village, plaintiffs could not, under the circumstances of this case, without authorization from the village, substitute new attorneys in place of the County Attorney, (4) though in consequence of that unauthorized substitution plaintiffs cannot obtain reimbursement for the fees of the substituted attorneys, they are not barred from reimbursement for the reasonable value of printing and other similar expenses which would have been incurred in defending the action had there been no substitution.

A somewhat more complete recital of the background than is set forth in the majority opinion may facilitate understanding of what is at issue. The present action is the latest episode in a litigation saga that began in 1950 when the Incorporated Village of Laurel Hollow brought an action to enjoin Erwine and Estelle Laverne from using their residentially zoned property for commercial purposes. The injunction was granted and sustained on appeal (Incorporated Vil. of Laurel Hollow v Laverne Originals, 283 App Div 795, affd 307 NY 784). On the basis of a neighbor’s complaint concerning the number of trucks entering and leaving the Laverne premises and the section of the Village Building Zone Ordinance (article 10, § 10.1) which empowered him "to enter any building or premises at any reasonable hour”, plaintiff Johnson, the then building inspector of the village, entered the Laverne premises on July 24, 1962 and saw equipment and materials that led him to believe the injunction was being violated. He reported these facts to the village board which, with the advice of the Village Attorney, authorized him and plaintiff Dubosque, the Deputy Mayor, to make another inspection. That inspection, in which plaintiff Corning, the Mayor, joined, was made on October 18, 1962, and a third inspection by the building inspector was made on December 18, 1962. Contempt proceedings, an action for civil penalties and a criminal proceeding for violation of the zoning ordinance followed. On Erwine Laverne’s appeal from his conviction on the criminal charge, we held the inspections unlawful, distinguishing Frank v Maryland (359 US 360), which had upheld a warrantless inspection for health code purposes, and dismissed the information (People v Laverne, 14 NY2d 304). Thereafter the civil actions brought by the village against the Lavernes were also dismissed (Incorporated Vil. of Laurel Hollow v Laverne Originals, 17 NY2d 900).

The Lavernes then brought an action in the Federal court against the present plaintiffs, based on the Civil Rights Act (US Code, tit 42, § 1983). In that action, in which the present plaintiffs were represented by the County Attorney of Nassau County, summary judgment was granted the Lavernes (316 F Supp 629), but after the Second Circuit’s decision in Bivens v Six Unknown Named Agents of Fed. Bur. of Narcotics (456 F2d 1339), holding a good faith reasonable belief in the lawfulness of a search to be a defense in a similar action, a motion to vacate was made (354 F Supp 1402) and, based on a jury finding that defendants (present plaintiffs) had acted in good faith, judgment was entered for defendants (376 F Supp 836). That judgment was ultimately affirmed on appeal (522 F2d 1144).

The complaint in the present action alleges that the acts which formed the basis for the Federal action were performed by plaintiffs in the exercise of their duties as officers and agents of the village and in good faith, that they were represented in the Federal action by the County Attorney, that on August 11, 1970 (about a month after the Federal court granted summary judgment against them) plaintiffs consented to the change of their attorney from the County Attorney to a private law firm, which represented them thereafter until the conclusion of the Federal action, that they kept the village informed of the proceedings in the action, and that plaintiffs incurred substantial costs and disbursements for legal fees, printing and court costs, for which the village has refused to reimburse or indemnify plaintiffs. The answer of the village admits that plaintiffs purported to make the inspections in their capacities as village officials and performed them in good faith and admits its refusal to reimburse or indemnify plaintiffs, but alleges that the village is prohibited by section 1 of article VIII of the New York Constitution and by the Village Law from reimbursing plaintiffs and that plaintiffs, in violating the Lavernes’ constitutional rights, acted outside the scope of their authority. Plaintiffs’ motion for summary judgment was granted by Special Term and the cross motion of the village was denied. On appeal, the Appellate Division reversed, on the ground that without express authorization plaintiffs were not entitled to reimbursement, denied plaintiffs’ motion for summary judgment and granted defendant village’s cross motion (64 AD2d 918).

I agree that village officials and employees are not entitled to counsel of their choice unless the village improperly refused to provide an attorney to defend them and even then can be reimbursed only to the extent that the trier of facts finds both the choice made and the fees charged to be reasonable. It is, I also agree, a necessary corollary of that rule that such officials cannot, without authorization by village officials or the unreasonable refusal of them to accept a substantial reason for substituting attorneys after the necessity for doing so has been brought to their attention, substitute an attorney of their own choosing for one provided by the village. I cannot, however, accept the majority’s characterization of plaintiffs’ acts as personal, nor the conclusions it deduces therefrom that there is no statutory authority for employment by the village of counsel to defend plaintiffs and that there is a consequent violation of the constitutional prohibition against making a gift of public funds.

I

My disagreement with the majority’s basic premise that plaintiffs are not entitled to a defense at the expense of the village rests primarily on considerations of policy, but involves also differences concerning prior holdings of this court and the interpretation of the Constitution (art VIII, § 1).

I start with the fundamental proposition that the law implies an obligation on the part of a principal to indemnify his agent for the expense of defending a lawsuit brought for the acts of the agent done in the good faith performance of his duties. That principle, recognized by this court for more than 100 years (Howe v Buffalo, N. Y. & Erie R. R. Co., 37 NY 297; see People ex rel. Van Keuren v Board of Town Auditors of Town of Esopus, 74 NY 310 [involving a town employee]; Restatement, Agency 2d, § 438, subd [2]; § 439, subds [c], [d]), entitles the agent to indemnity for the expenses of a successful defense of actions brought by third persons acting under the mistaken belief that the agent’s conduct was wrongful (Restatement, Agency 2d, § 439, Comments g, h) and authorizes recovery by the agent even after termination of his agency with respect to obligations incurred during it (Restatement, Agency 2d, § 438, Comment f; see, also, id., § 451, Comment d).

The basis of the rule is the conception that it is only fair that the principal should bear the loss for acts performed by the agent in the principal’s business (Restatement, Agency 2d, § 438, Comment a). It is, moreover, a rule generally applied to municipal officers and employees, even though it turns out that they may have exceeded their legal authority, provided they acted in good faith (see Levine v Miteer, 16 AD2d 990; 3 McQuillin, Municipal Corporations [3d ed rev], § 12.137, pp 575-576; 1 Dillon, Municipal Corporations [5th ed], § 307, pp 563-564). With respect to municipal officers and employees, however, the policy behind the rule is broader than that for agents generally.

The policy considerations involving governmental employees are three. Though stated in the context of immunity from liability rather than indemnity for expenses, they are most succinctly articulated in two recent decisions of the Supreme Court, Scheuer v Rhodes (416 US 232) and Wood v Strickland (420 US 308). Scheuer states the first two (416 US, at p 240) as follows: "(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good” and Wood, the third (420 US, at p 320, see, also, p 331): "The most capable candidates * * * might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure.” In this day of ever expanding litigation against public officials and employees the public interest in obtaining capable officials, who will act effectively in enforcing the laws, as these plaintiffs sought to do, mandates that such officials and employees be reimbursed for fees and expenses incurred in defending themselves with respect to acts undertaken officially and in good faith. The injustice and chilling effect of a contrary holding requires that its source be the clearest constitutional or statutory proscription.

The majority’s holding rests on no such foundation. Its bases are three: defending oneself against charges of misconduct at one’s own expense is a risk traditionally associated with acceptance of public office (at p 353); the Constitution prevents compensating a person who performs an act which the government had no duty to undertake (at p 353); the possibility of extravagance or collusion require that, absent extraordinary circumstances, the retainer of an attorney be authorized by statute or appropriate resolution (at pp 351-352).

The difficulty with the first is that it rests on the rhetoric of the decisions cited to support it and pays too little attention to their holdings. The "misconduct” of the present plaintiffs, if their acts in furtherance of the declared zoning policy of the village can be so characterized, was of a totally different character than that involved in the cited cases, which was such as to warrant dismissal from office or worse. Thus, Matter of Chapman v City of New York (168 NY 80) involved fees and expenses of a police officer sought to be disciplined and removed from office; Matter of Kilroe v Craig (238 NY 628), an Assistant District Attorney indicted on charges of conspiracy in conducting certain prosecutions; Matter of Guarino v Anderson (259 NY 93), police officers indicted for failing to report the maintenance of a public nuisance; Leo v Barnett (41 NY2d 879), town assessors who having been removed from office, successfully sued for reinstatement. One can agree with the statement in the Appellate Division opinion in that case, on the basis of which this court affirmed, that "at common law the public officer contested his ouster at his own expense, no matter what might be the baseless character of the attack” (48 AD2d, at p 465), without doing violence to the rule argued for in this dissent that when the action defended seeks to impose liability for the performance of an official act, as distinct from ouster from or reinstatement in office, a public official is entitled to reimbursement for reasonable fees and expenses reasonably incurred. Only Buckley v City of New York (264 App Div 116) sought to apply Matter of Chapman’s holding to the defense of a civil action for official acts and in light of the trial court’s holding that plaintiff Buckley, chamberlain of the city, was not an agent of the city, the recital of that holding in the State reporter’s memorandum accompanying our affirmance, and the absence of any reference to the Appellate Division’s reasoning in that memorandum, our no opinion affirmance (289 NY 742), is at best equivocal.

The constitutional argument appears no better founded. Matter of Guarino v Anderson (259 NY 93, 95-96, supra) cited at page 353 for the proposition that the Constitution prevents compensating a person who performs an act the government had no duty to undertake does not sustain the broad proposition for which it is cited. The act there referred to was of the same limited character noted in the preceding paragraph of this dissent, i.e., "a public officer in defending himself against false accusations”. It is inconsistent too with the recognition in Gavin v Board of Supervisors of Rensselaer County (221 NY 222, 227) that "There is no greater [constitutional] objection to the payment of the costs and expenses incurred by a public officer in defending himself against charges of misconduct than there is to the payment of the costs and expenses incurred in the prosecution of such charges”. It is, moreover, wholly inconsistent with the admission by the village in its answer that plaintiffs purported to perform the acts of which the Lavernes complained in their capacities as agents of the village and in doing so acted in good faith.

II

The third basis — the necessity for authorization pursuant to statute or resolution — is no greater obstacle for there can be no question on the facts of this case that statutory authorization for employment of counsel for plaintiffs at village expense existed, and that the County Attorney’s representation of plaintiffs came about pursuant to such statutes. Subdivision 11 of section 89 of the Village Law in effect at the time that the Laverne action was brought provided for the employment of a Village Attorney, but further provided that: "The board also may, from time to time as necessity requires, employ an attorney, other than the one regularly employed, to perform any special service for the village, and pay a reasonable compensation therefor, and the expense may be a legal charge against the village.” Not only was the village authorized to retain special counsel by that section, but also the County Attorney of Nassau County was authorized by statute to act in such a capacity. Section 1102 of the County Government Law of Nassau County, in effect since 1938, provides that: "The county attorney * * * upon the request of the governing body of any * * * village * * * may act as the legal advisor or representative thereof on such terms as may be agreed upon between the county executive and the said governing body.” The complaint in the present action annexes as an exhibit the answer filed in the Laverne action and the answer of the village in this action concedes that the paper annexed was the answer filed. That answer expressly alleged in its first and third separate defenses that defendants in the Laverne action were officers or agents of the village and that the acts complained of were committed in the exercise and discharge of their official duties and with the consent and permission of the village. While the papers on the instant motion do not expressly state that the County Attorney undertook defense of the Laverne action on plaintiffs’ behalf under that provision, it is clear from the answer he filed that his defense of them was authorized by that section (cf. Levine v Miteer, 16 AD2d 990). Even if that were not so the presumption of regularity (Richardson, Evidence [10th ed — Prince], § 72) would require the village, as the opposing party in this action, to come forward with proof to rebut that conclusion (People v Richetti, 302 NY 290, 298).

Thus the village both had statutory authority to employ counsel in defense of its employees and officials, the present plaintiffs, and in fact did so. That we are not told the terms agreed upon between the County Executive and the village is of no moment on the present appeal, since plaintiffs do not seek reimbursement for fees paid or payable for the County Attorney’s services, it cannot be presumed that the County Executive agreed to the payment of out-of-pocket printing and other disbursements on behalf of village officials from county funds, and, in any event, the phases of the litigation at which such expenses are normally incurred occurred after substitution of the private firm for the County Attorney.

Ill

The issue, then, is not whether the village had an obligation to provide a defense, but whether, it having done so, plaintiffs were at liberty to employ at the expense of the village an attorney different than the village provided. While there may be cases in which the withdrawal, disability or incompetence of the attorney provided by a municipality requires the employment of a substitute attorney (see, e.g., Cahn v Town of Huntington, 29 NY2d 451 [disability]), a municipal official for whom counsel has been provided generally has no authority on his own judgment and without the approval of the municipality to make a substitution at its expense (see People ex rel. Van Keuren v Board of Town Auditors of Town of Esopus, 74 NY 310, supra; Matter of Kay v Board of Higher Educ., 260 App Div 9, app den 260 App Div 849, 912; Restatement, Agency 2d, § 438, Comments b, e). As the Supreme Court of Minnesota put it in Adams v North Range Iron Co. (191 Minn 55, 59), in an analogous situation: "After some search we have found no case where, in a suit by a third party against both the principal and the agent in which the principal employed competent attorneys to defend both, it was held that the agent was nevertheless entitled to employ his own separate attorney and recover the reasonable attorney’s fees from the principal.” Neither in the complaint nor in their affidavits on this motion do plaintiffs indicate the reason for the substitution. While it may have been that they lost confidence in the County Attorney after the Lavernes were granted summary judgment, there is nothing to suggest that substitution rather than reargument or appeal was the required or even the appropriate course. Having chosen for reasons of their own to employ a different attorney than that employed for them by the village, plaintiffs foreclosed themselves from recovering from the village the fees charged by the substitute attorneys.

IV

They did not, however, by that action foreclose themselves from recovering their reasonable printing disbursements and other reasonable expenses, which the village would have been required to pay even if the County Attorney continued to represent plaintiffs (see Sniffen v City of New York, 4 Sandf 193, 198), since those expenses were essential to the ultimate success of plaintiffs as defendants in the Federal action. Since the village by employing the County Attorney as counsel for plaintiffs may reasonably be deemed to have agreed to pay those expenses (see Judson v City of Niagara Falls, 140 App Div 62, 66, affd 204 NY 630; Kramrath v City of Albany, 127 NY 575, 581), plaintiffs are entitled to recover from the village such part of those expenses as they have not already recovered from the Lavernes as costs in the Federal action and as Special Term on assessment of damages finds reasonably incurred.

V

While I disagree with so much of the majority holding as foreclosed plaintiffs’ recovery of their expenses other than fees, I agree that they are not entitled to recover fees incurred by them for the prosecution of the instant action. It is well settled that attorneys’ fees are merely incidents of litigation and, therefore, not compensable in the absence of an express statutory or contractual provision therefor (Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516; City of Buffalo v Clement Co., 28 NY2d 241; 1 Speiser, Attorneys’ Fees, § 13:1). The necessary corollary of that rule is that neither a statutory nor a contractual provision for the payment of counsel fees includes counsel fees in the suit to collect those fees, absent specific language to that effect (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; Grimsey v Lawyers Tit. Ins. Corp., 31 NY2d 953; Doyle v Allstate Ins. Co., 1 NY2d 439; Swiss Credit Bank v International Bank, 23 Misc 2d 572 [Steuer, J.]). Since plaintiffs suggest no such basis for their claim, they are entitled to no more than such court costs and disbursements as the CPLR (CPLR 8101, 8301) allow them in this action (see Restatement, Agency 2d, § 438, Comment k).

Accordingly, the order of the Appellate Division should be modified to provide that defendant’s cross motion for summary judgment is granted to the extent of dismissing so much of the complaint as seeks attorneys’ fees for defending the underlying action or prosecuting the present action but otherwise denied, that plaintiffs are granted partial summary judgment for their unreimbursed expenses in the underlying action, the matter is remitted to Special Term for assessment of damages, and the Appellate Division order should otherwise be affirmed.

Judges Gabrielli, Fuchsberg and Greenblott concur with Chief Judge Cooke; Judge Meyer dissents in part and votes to modify in a separate opinion in which Judges Jasen and Jones concur.

Order affirmed.

      . The dissenters’ concerns notwithstanding, history has proven that the constitutional prohibition against reimbursing public officials for costs incurred in defending actions brought against them in their official capacities has yet to produce a dearth of candidates on the ballot year after year. Moreover, it is quite difficult to perceive how granting public officials such as plaintiffs the right to recover their expenses, but not attorney’s fees (which are a substantially larger item of expense), in situations such as this will ameliorate the concern of the dissenters. Indeed, as this litigation bears out, plaintiffs did not act effectively in enforcing the law; in fact, they violated the very laws they were sworn to enforce (People v Laverne, supra; Incorporated Vil. of Laurel Hollow v Laverne Originals, supra).

      . The dissent’s reliance on former subdivision 11 of section 89 of the Village Law is misplaced (dissenting opn, at p 362). That statute authorized the board of trustees of a village to employ an attorney "to perform any special service for the village” (emphasis supplied). As such, it simply codified the common-law rule that, except in extraordinary circumstances not present here, an attorney may not be compensated with public funds unless his employment is authorized by the governing body of the municipality (Cahn v Town of Huntington, 29 NY2d 451, supra; Seif v City of Long Beach, 286 NY 382, supra). Moreover, the statute authorizes retention only when the attorney will "perform any special service for the village.” Here, plaintiffs retained the law firm not to protect any interest of the village, but to defend plaintiffs in their personal capacities. Since the law firm, and for that matter the County Attorney, performed no .service for the village, the statute is inapposite.
      Inapposite, too, is section 1102 of the County Government Law of Nassau County. There is no indication in the record that the village board of trustees requested that the County Attorney provide representation to plaintiffs. More important, the record is absolutely devoid of any indication of what the terms of that representation were to be. It may very well have been that the village would be responsible for those costs. Equally reasonable is the assumption that the county would provide representation, including costs and disbursements, at no charge. Or it is possible that plaintiffs themselves agreed to underwrite this cost. The point is that we are left with only surmise and conjecture of the terms of that representation. To conclude, as does the dissent, that the village was to pay the expenses of the County Attorney is tantamount to this court making new findings of fact — a function clearly beyond our power (CPLR 5501, subd [b]).
      Given the inappropriateness of the above assumptions, the conclusion of the dissent must fall. Since there is no evidence that the village agreed to pay the costs and disbursements of the County Attorney, it is impossible to imply an agreement on its part to pay those costs billed by the law firm substituted in its place. This is especially so in view of the fact that the record is devoid of any indication that either the County Attorney or his successor was retained in accordance with statute or by resolution of the village board of trustees (Seif v City of Long Beach, supra).

      Finally, the dissenters avoid what is the real issue in this case, viz., the constitutional prohibition against gifts of public funds for a private purpose (NY Const, art VIII, § 1). As noted, so long as the interests of the village were not implicated by the Laverne action and in the absence of a statute authorizing the village to provide plaintiffs a defense, the Constitution prohibits it from reimbursing plaintiffs for any expenses incurred in defending themselves in their personal capacities (e.g., Matter of Chapman v City of New York, 168 NY 80, supra).

      . As the majority opinion notes, the action was against the plaintiffs individually and not against the village because Monell v New York City Dept. of Social Servs. (436 US 658) had not yet overruled the holding of Monroe v Pape (365 US 167) that a muriicipality could not be sued under the act. While Monell holds that a municipality cannot be held liable under section 1983 solely on a respondeat superior basis, it recognizes municipal liability for acts which "may fairly be said to represent official policy” (436 US, at p 694). In view of the quoted provision of the ordinance, the advice of the Village Attorney and the authorization by the village board, there can be little question that the inspections for which the Lavernes sued represented official policy.

      . The majority equates plaintiffs and the village and suggests (at p 353) that "there is no principal involved to whom the plaintiffs may look for reimbursement”. The suggestion is contradicted by the very Restatement (Agency 2d, § 14 C) section cited for Comments a and b to that section distinguish between the board of directors of a corporation and an individual director who is also appointed an officer, in which case "he is necessarily an agent, and normally a general agent, of the corporation, since he acts on its behalf and subject to its control exercised through the board of directors”.

      . Similar policy statements by this court may be found in Stukuls v State of New York (42 NY2d 272) and go back at least to Chancellor Kent’s statement in Yates v Lansing (5 Johns 282, 292, affd 9 Johns 395) that the "vigorous and independent administration of justice” required that Judges be exempt from civil suit, and in his quotation (5 Johns, at p 296) from a Connecticut decision that: "No man would accept the office of judge, if his estate were to answer for every error of judgment, or if his time and property were to be wasted in litigations with every man whom his decisions might offend”.

      . It is not necessary, since as pointed out in Part II below there is existing statutory authority, to meet the suggestion made in both the majority opinion and in Guarino that prospective but not retroactive authorization passes constitutional muster. It may be noted, however, that that suggestion appears to conflict with the moral obligation cases, such as Farrington v State of New York (248 NY 112); see, also, Seif v City of Long Beach (286 NY 382, 389), which do not require prior legislation, and, indeed, with the wording of the constitutional provision itself which draws no such prospective-retroactive distinction. Whether a gift is made turns not on when an expenditure is authorized but on whether it is for a legitimate public purpose: here, the furtherance of village zoning purposes through good faith performance of duty and the encouragement of qualified persons to seek village office or employment without fear of personal liability for good faith performance of official duties (cf. Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122, 128). Moreover, the same fairness principle upon which the agency rule discussed at page 358, 359 above is grounded also determines what is a moral obligation which can be constitutionally recognized without violating the gift restriction (People v Westchester County Nat. Bank, 231 NY 465, 477 ["some direct injury suffered by the claimant under circumstances where in fairness the State might be asked to respond”]).

      . The provision was omitted from the 1972 recodification of the Village Law, apparently, however, without intent to change the rule, see section 57 of chapter 892 of the Laws of 1972.

      . As above noted (supra, at p 357), the reargument avenue was ultimately successful, after the Second Circuit decision in the Bivens case.

      . Since plaintiffs would be entitled to attorneys’ fees except for the unauthorized substitution, the second sentence of footnote 1 of the majority opinion is based on a misunderstanding of my position.

      &Designated pursuant to section 2 of article VI of the State Constitution.


author: Meyer, J.

text:
    Clara Padula, as Administratrix of the Estate of Frank Padula, Deceased, Appellant, v State of New York, Respondent. Paul Modafferi, Appellant, v State of New York, Respondent.
    (Claim No. 54694.)
    (Claim No. 56914.)
    Argued October 8, 1979;
    decided November 29, 1979

      POINTS OF COUNSEL

      Charles A. Schiano for Clara Padula, appellant.
    I. The Court of Claims, in its capacity as trier of the facts, properly found claimants to be free of contributory negligence. Contributory negligence is, in the present case, a question of fact which should not have been reviewed on appeal as there was no showing by the State that the evidence before the Court of Claims was insufficient to support that court’s findings as to the facts. A trial court’s finding should not be reversed on the mere basis that a different finding is "not unreasonable.” (Wartels v County Asphalt, 29 NY2d 372; Spano v Perini Corp., 25 NY2d 11; Getty v Williams Silver Co., 221 NY 34; Sprague v Buell, 256 App Div 893.) II. An essential element of contributory negligence is that the person to be charged therewith have the capacity to anticipate danger. The trial court properly found that claimants lacked this capacity and the State has failed to establish that there was insufficient evidence to support this finding. (Naeris v New York Tel. Co., 5 NY2d 1009; Mochen v State of New York, 43 AD2d 484.) III. Even if there were a finding that claimants had the capacity to anticipate the peril of their actions, the fact of their narcotics addiction encompassed a psychological dependence on drugs which precluded any ability on their part to resist the temptation of ingesting any substance which offered the prospect of a "high”, and therefore they should not be charged with contributory negligence as they did not voluntarily subject themselves to risk. (Robinson v California, 370 US 660; Powell v Texas, 392 US 514; United States v Ashton, 317 F Supp 860; Watson v United States, 439 F2d 442; United States v Moore, 486 F2d 1139, 414 US 980.) IV. Even if it were found that claimant Padula was contributorily negligent, under the doctrine of "last clear chance”, the proximate causal relationship between that contributory negligence and claimant’s injury was broken by the State’s failure to heed the peril and exercise reasonable care to avert disaster and claimant should, as a matter of law, not be held contributorily negligent. (Chadwick v City of New York, 301 NY 176; Wilson v Maiello, 28 NY2d 594.)

      David Jaroslawicz, Francis E. Dorn and Joseph Fallek for Paul Modafferi, appellant.
    I. Where the court below has reversed a judgment of a trial court, and made new findings of fact, this court shall review the record and make its own determination of the facts. (Smith v Smith, 273 NY 380; Rudman v Cowles Communications, 30 NY2d 1; Amend v Hurley, 293 NY 587.) II. The law in New York is clear that in a tort case, although a person may know what he is doing, he may still have an irresistible impulse to act, thereby rendering him incapable of voluntary conduct, and thus unable to resist performing an action which he knows may cause him harm, and under such circumstances, should not be found contributorily negligent for performing an act over which he had no control. (Fuller v Preis, 35 NY2d 425; Mochen v State of New York, 43 AD2d 484; Robinson v California, 370 US 660; Ortelere v Teachers’ Retirement Bd. of City of N. Y., 25 NY2d 196; Young v State of New York, 92 Misc 2d 795; Gioia v State of New York, 22 AD2d 181; Baltimore Potomac R. R. v Cumberland, 176 US 232; Rossman v La Grega, 28 NY2d 300; Wartels v County Asphalt, 29 NY2d 372.) III. Assuming that the court below was correct in finding Modafferi had been contributorily negligent in drinking the Ditto fluid, and that he should have been able to restrain himself from doing so, Modafferi’s actions should not preclude him from recovering, because the State had a "last clear chance” on at least two separate occasions, to prevent Modafferi from suffering the injuries which he did. (Chadwick v City of New York, 301 NY 176; Kumkumian v City of New York, 305 NY 167; Wartels v County Asphalt, 29 NY2d 372.)

      Robert Abrams, Attorney-General (J. Lawson Brown and
      Shirley Adelson Siegel of counsel), for respondent.
    I. The purpose of the Iroquois Rehabilitation Center was to prepare and return drug addicts to normal life. The essence of the program was that accepted residents were free of psychological problems and could be trusted. The determination that residents could continue projects during the evening that they were working on during the day, without constant or individual supervision, was a governmental decision. The State has not waived its immunity from claims arising as a result of such governmental decisions. (Weiss v Fote, 7 NY2d 579; Bellows v State of New York, 37 AD2d 342; Young v State of New York, 40 AD2d 730; Ferrucci v State of New York, 42 AD2d 359, 34 NY2d 881; Taig v State of New York, 19 AD2d 182.) II. There is no evidence of any mental disability of these claimants. They were drug free for a long period of time before the instant incident occurred. Claimants were aware of what they were doing. They failed to prove their freedom from negligence. (Van Patter v Towns Hosp., 246 NY 646; Mochen v State of New York, 43 AD2d 484; Gioia v State of New York, 16 AD2d 354.) III. This record shows that the State’s doctor took every precaution known at that time to help claimants recover from their ingestion of Ditto fluid. In any event, any errors in the treatment of claimants herein by the State physician were errors in medical judgment for which the State is not liable. (Rosario v State of New York, 33 AD2d 122; Cameron v State of New York, 37 AD2d 46, 30 NY2d 596.)
   OPINION OF THE COURT

Meyer, J.

The question presented by this appeal is whether the State is liable for the death of one and blindness of another certified heroin addict, residents of the Iroquois Narcotic Rehabilitation Center maintained by the State Narcotic Addiction Control Commission, both of whom had been committed to the center pursuant to the provisions of the Mental Hygiene Law. The death in one case and blindness in the other resulted from the drinking of a fluid (Ditto) containing methyl alcohol which had been mixed with an orange preparation called Tang. After a joint but bifurcated trial, the Court of Claims found for each claimant on both negligence and contributory negligence and directed a further trial on the issue of damages. From that interlocutory judgment the State appealed to the Appellate Division, Third Department, which agreed, one Judge dissenting, with the Court of Claims’ finding of negligence, and rejected the State’s argument that it is immune from liability because its addict rehabilitation program involves the exercise of governmental judgment and discretion (cf. Weiss v Fote, 7 NY2d 579), but concluded that the complaints should nevertheless be dismissed because the weight of the credible evidence established that each addict had sufficient control of his will to resist the temptation of ingesting the Ditto fluid (59 AD2d 480). On claimants’ appeal of right to us, the order of the Appellate Division should be reversed and that of the Court of Claims reinstated.

We agree with the Appellate Division’s legal conclusion that the negligence issue turns not on the design of the rehabilitation program, but on the manner in which it was carried out. With respect to its affirmance of the finding of fact that there was negligence on the part of the State, we note that, since there is ample evidence in the record to support that finding, the issue is beyond our power of review. Our disagreement with the Appellate Division is on the issue of contributory negligence, on which we find the standard used by that court incorrect and the weight of the evidence to be with the findings of the Trial Judge (cf. Matter of Town Bd. of Town of Clarkstown v Sterngass, 40 NY2d 888; Cohen and Karger, Powers of the New York Court of Appeals, § 112).

Since the Padula action is for wrongful death, it was the State’s burden to establish contributory negligence as a defense (EPTL 5-4.2), but we do not distinguish the two cases on that ground for in our view the weight of the evidence sustains the Trial Judge’s finding that as addicts they did not have the ability to resist the temptation to ingest the Ditto-Tang mixture. The Appellate Division’s contrary conclusion is predicated on its conception that neither addict suffered from a mental disability, that both had been found psychologically sound prior to admission and were not seeing a psychiatrist and that their actions were reasoned and deliberate. That reasoning fails to take account of our decisions in Fuller v Preis (35 NY2d 425) and Ortelere v Teachers’ Retirement Bd. of City of N. Y. (25 NY2d 196). In Fuller we recognized in a tort setting "that one may retain the power to intend, to know, and yet to have an irresistible impulse to act and therefore be incapable of voluntary conduct” (35 NY2d, at p 432); in Ortelere with respect to capacity to contract we held that incapacity "may exist, because of volitional and affective impediments or disruptions in the personality, despite the intellectual or cognitive ability to understand” (25 NY2d, at p 199). Moreover, the Appellate Division placed undue emphasis on the label "mental disability”, which as we noted in Matter of Torsney (47 NY2d 667, 683), is being continually redefined by psychiatrists. The divergence of viewpoint between the law as applied in the decision under appeal and at least one practicing psychiatrist is well illustrated by a quotation from an article by Dr. Daniel D. Pugh, entitled The Insanity Defense in Operation: A Practicing Psychiatrist Views Durham and Brawner (1973 Wash U LQ 87). Commenting on the difficulty with the law’s definition of "mental disease” as stated in Durham v United States (214 F2d 862) and McDonald v United States (312 F2d 847), Dr. Pugh, whose view is that heroin addiction clearly is a mental illness (1973 Wash U LQ, at p 107), has this to say (id., at pp 104-105): "Is heroin addiction a 'mental disease’ under Durham-McDonald? I must confess I cannot think of a psychiatric illness that better fits the Durham-McDonald definition of insanity. It is the only psychiatric disease that has as one of its typical manifestations an irresistible compulsion to commit crimes. It is the only psychiatric disease in which the impairment of behavior control can be measured: less than five percent of addicts who have been withdrawn and returned to the community are able to avoid readdiction within a year. Voluntary withdrawal from heroin by persons with access to the drug is virtually unknown. Although the disease has little effect on cognitive processes, there is no psychiatric disease that has a greater effect on emotional processes.”

We noted in Fuller v Preis (supra, at pp 429-430) that: "recovery for negligence leading to the victim’s death by suicide should perhaps, in some circumstances, be had even absent proof of a specific mental disease or even an irresistible impulse provided there is significant causal connection [citations omitted].” (Emphasis supplied.) Whatever the definition of mental illness for purposes of CPL 330.20, and whatever the contributory or comparative negligence rule may ultimately be held to be as to a person under the influence of drugs in a noncustodial situation (compare NY PJI 2:45 [Contributory Negligence — Persons Under Disability — Intoxicated Person], with NY PJI 2:46 [Contributory Negligence — Persons Under Disability — Mental Deficiency]), as to which we express no opinion, we think that in relation to persons in the custody of the State for treatment of a drug problem, contributory (or comparative) negligence should turn not on whether the drug problem or its effects be categorized as a mental disease nor on whether the injured person understood what he was doing, but on whether based upon the entire testimony presented (including objective behavioral evidence, claimant’s subjective testimony and the opinions of experts) the trier of fact concludes that the injured person was able to control his actions. As Mr. Justice Simons put it in Mochen v State of New York (43 AD2d 484, 487, on second app 57 AD2d 719) in holding it a question for the jury whether an inmate of a mental institution was guilty of contributory negligence in jumping out a window: "The disability may fall short of psychosis or severe retardation and the act may be a voluntary judgment by the patient but still be the product of impulse or irrational behavior beyond his control. Under such circumstances, a plaintiff should not be held to any greater degree of care for his own safety than that which he is capable of exercising” (see, also, Gioia v State of New York, 22 AD2d 181; Contributory Negligence of Mentally Incompetent or Mentally or Emotionally Disturbed Person, Ann., 91 ALR2d 392).

Tested by that standard, the weight of the evidence in the instant case favors the finding of the Trial Judge that Padula and Modafferi were not guilty of contributory negligence. The evidence shows that the accepted practice in institutions such as that in which they resided was to keep close watch on chemicals such as methyl alcohol because addicts were constantly looking for something to get high on, that at the Iroquois Center alcohol and drugs were not permitted, urine tests were taken at random to see whether residents had ingested any chemical, spot inspections of lockers for chemicals were carried out, and chemicals used in the shops were closely controlled. Thus, the fact that Padula and Modafferi had been screened and accepted for the program cannot be read as meaning that the institution believed them wholly free of the effects of the addiction which brought them to the institution in the first place.

The expert testimony on behalf of claimants came from Doctors Herbert Wender and Daniel Casriel. Dr. Wender testified that it was common medical knowledge at the time of the incident that drug abusers motivated by the desire for the gratification induced by a high would deny the reality of the damage that methyl alcohol could do and drink it, even if told it was poisonous and could cause death or blindness. Dr. Casriel’s opinion was that it was common knowledge at the time that a drug addict is an emotional infant who will insert any available chemical into any bodily orifice by any means available in order to obtain an affective change, for which reason any chemical that could possibly be taken to change mood, whether poison or not, had to be kept locked away, that the institution had to protect the addict against his own proclivity for danger, and that a certified addict, unless his personality is totally restructured, has a lifelong psychological dependence on drugs, as a result of which if he cannot get heroin he will take other substitutes. Both also testified in response to hypothetical questions that Padula and Modafferi could be expected to ingest the Ditto-Tang drink.

Testifying on behalf of the State, Dr. Jerome H. Jaffe stated that there was no consensus among medical experts, that the majority view was that heroin addicts are not emotional infants and will make choices between good and bad substances. He conceded, however, that as to persons in a facility such as Iroquois "much of the expert opinion, and, incidentally, backed by practical and actual experience of and with heroin addicts is that such addicts do not have the ability to resist temptation to ingest a substance that might make them euphoric or 'high’, even if such substance is harmful or dangerous to the human body if ingested”, though he gave it as his personal opinion that such an addict had discretion to say "no”.

The testimony of those present at the print shop drinking session was that Joseph Perrone read from the Ditto can, on which there was a skull and crossbones, a warning that it was poisonous and could cause blindness or death, and Modafferi testified that Perrone said "We’ve got to be crazy to drink this”, but that both he and Perrone drank it nevertheless, that he was aware when he drank it that it could cause blindness or death but could not resist doing so because he felt he needed it and wanted to believe it was all right to do so.

Weighing on the side of the finding by the Court of Claims are the procedures imposed by the institution in question and such institutions generally, the clearly stated opinions of Doctors Wender and Casriel, and the fact that not only Padula and Modafferi but six other residents drank the Ditto-Tang concoction notwithstanding that the warning on the can had been read to them. Weighing against. the Court of Claims finding is the self-interest of Modafferi and the opinion expressed by Dr. Jaffe. Bearing in mind the opportunity of the Trial Judge to see and hear Modafferi and thus use his demeanor in evaluating his evidence and Dr. Jaffe’s concession that there was a substantial body of expert opinion contrary to the opinion he expressed, we conclude that the weight of the evidence is with the findings of the Court of Claims rather than those of the Appellate Division.

Accordingly, the order of the Appellate Division should be reversed and the judgments of the Court of Claims should be reinstated, with costs.

Judges Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Meyer; Chief Judge Cooke and Judge Jasen dissent and vote to affirm for the reasons stated in the opinion by Mr. Justice Michael E. Sweeney at the Appellate Division (59 AD2d 480).

Order reversed, etc.

         In the guard’s admission of an inmate to the locked print shop after hours; in the availability of the Ditto fluid which was supposed to be locked away at the close of day; in the guard’s failure to intercede when he discovered not just the inmate he had permitted to enter the print shop but a number of others, some in giddy condition, with drinks in front of them, and was offered a drink by one of them; in the guard’s false entry that the print shop had been broken into; and in the State’s failure to call the guard as a witness or explain his absence.


author:
      Per Curiam.
     Fuchsberg, J.

text:
    In the Matter of H. Earl Fullilove et al., Respondents, v Abraham Beame, as Mayor of the City of New York, et al., Appellants.
    Argued September 5, 1979;
    decided November 20, 1979

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan, Esmeralda Simmons and Michael Vaccari of counsel), for appellants.
    The 1977 regulations validly implement existing legislation prohibiting discrimination and satisfy the guidelines set down in Matter of Broidrick v Lindsay. (Matter of Broidrick v Lindsay, 39 NY2d 641; Local Union No. 35 of Int. Nat. Brotherhood of Elec. Workers v City of Hartford, 462 F Supp 1271; Fullilove v Kreps, 584 F2d 600; University of Cal. Regents v Bakke, 438 US 265.)

      Robert G. Benisch for respondents.
    I. The city charter gives neither the Mayor nor the Deputy Mayor the power to promulgate the rules at issue herein. (Matter of Picone v Commissioner of Licenses, 241 NY 157; Rapp v Carey, 58 AD2d 918, 44 NY2d 157; University of Cal. Regents v Bakke, 438 US 265.) II. The rules at bar are in contravention of existing law and, therefore, invalid. (Matter of Broidrick v Lindsay, 39 NY2d 641; Contractors Assn. of Eastern Pa. v Secretary of Labor, 442 F2d 159.)
   OPINION OF THE COURT

Per Curiam.

In this case as well as in Matter of Fullilove v Carey (48 NY2d 826), the fundamental question presented is not whether affirmative action is permissible or desirable. The question, simply and narrowly, is whether, under our governmental system, the central feature of which is distribution of powers, the executive has the authority to initiate affirmative action without legislative authorization.

Although the rule elsewhere may differ, the law in New York is clear.

The State Legislature, as well as the New York City Council, has unequivocally condemned discriminatory hiring practices. The executive clearly has the power and obligation to implement programs designed to prohibit discriminatory hiring practices. Indeed, the State Legislature has gone so far as to state that voluntary use of a State-approved affirmative action plan by private employers "shall not be an unlawful discriminatory practice” (Human Rights Law [Executive Law], § 296, subd 12).

But as this court stated in Matter of Broidrick v Lindsay (39 NY2d 641, 644, 646-647): "Nowhere in the law has the city council prescribed affirmative action to redress the effects of discrimination. There is a dramatic distinction between the expressed legislative policy of prohibiting employment discrimination and the mayoral policy of mandating employment 'percentages’.” Similarly there is a vast difference between permitting employers to voluntarily adopt an affirmative action program and mandating that this be done involuntarily under threat of legal sanctions.

The difference between obligations that require the taking of certain steps, and those that merely require one to refrain from others, is, in this sensitive area of racial relations, not merely one of degree, but of kind. Where the Legislature has set out nondiscrimination as the policy of the State, an order mandating that employers take certain actions cannot be viewed as merely one step further along a continuum.

In Matter of Broidrick (supra), because only specific administrative regulations were in issue, only those regulations, and not the mayoral order in which they were grounded, were struck by this court as being in excess of the legislative authorization. This led some (although not the courts below) to conclude, mistakenly, that the defect could be cured by different regulations which did not prescribe specific percentage quotas.

The difficulty in Broidrick, as here, is not the means employed by the executive to impose affirmative action in hiring practices, but rather that the executive attempted it at all. At the same time we note the distinction, carefully preserved in Broidrick, between affirmative action in hiring practices, and executive affirmative action which "only would enlarge the pool of persons eligible for employment based on discrimination-free merit selection” (Matter of Broidrick v Lindsay, 39 NY2d 641, 649, supra).

In sum, we would emphasize that the desirability of adopting a policy of affirmative action in hiring practices, and mandating the same, is not a prerogative of the executive, but rather of the legislative branch and it is to those bodies that persons seeking to impose affirmative action should direct their attention.

Fuchsberg, J.

(dissenting). Because I believe that neither the Governor’s Executive Order No. 45 nor the 1977 Rules and Regulations promulgated on behalf of the Mayor of the City of New York in implementation of the latter’s Executive Order No. 71 constitutes an excessive exercise of executive power, because in my opinion the majority’s reading of Matter of Broidrick v Lindsay (39 NY2d 641) to strike down each of these measures impermissibly narrows the meaning of that decision, and because the net effect of the court’s determination today is to prevent the heads of State and local governments from taking lawful steps toward the realistic enforcement of our strong legal and societal policies against race and sex discrimination, I must vote to reverse in both cases.

By way of preface, since the majority’s nullification of the two executive actions stems from their inclusion of a requirement for "affirmative action”, in articulating my views I think it best to take the scare factor out of that phrase. Though subsuming a broad range of policies and programs that have been introduced at State and Federal levels, "affirmative action” is basically a concept representative of the conviction that full equality of employment opportunity cannot be achieved simply by decrying discrimination or even by decreeing that discrimination cease; rather, it proceeds on the assumption that, unless these are accompanied by positive or "affirmative” steps to speed the elimination of the stubborn vestiges of discrimination, this noxious condition will continue to feed on itself, and the goal of equal opportunity will remain beyond reach.

"Affirmative action”, therefore, contemplates measures such as the reinstatement or upgrading of those who have been discriminated against, the recruitment of members of disadvantaged groups and the opening up of opportunities for attaining vocational skills that will enable them to compete in the labor market. While, at times, impatience with the pace of acceptable methods has led some to resort to quotas and programs of reverse discrimination, concepts quite different from equal opportunity (cf. Alevy v Downstate Med. Center, 39 NY2d 326, 336-337), it is not to be assumed that a program of affirmative action necessarily encompasses preferential treatment (see Matter of Broidrick v Lindsay, 39 NY2d 641, 646-648, supra). The rules and regulations in Broidrick were properly struck down because they did. The executive actions here do not and, thus, are not vulnerable to such attack.

On analysis, in their own way, the executive actions'before us today were but modest attempts to deal with existing inequalities of opportunity. Each recognized that discrimination in employment on the part of public contractors adversely affects the costs of public works by, among other things, decreasing the pool of available labor. Both were directed against what had been found to be a "specific” pattern of discrimination infesting the building and construction industry (Matter of State Comm. for Human Rights v Farrell, 43 Misc 2d 958, 960; see Fullilove v Kreps, 584 F2d 600, 606, cert granted 441 US 960; Equal Employment Opportunity Comm. v Local 638, 532 F2d 821, affd as mod 565 F2d 31; Rios v Enterprise Assn. Steamfitters, Local No. 638, 501 F2d 622). Both had as their aim simply to make the industry more responsive to its obligations as regards the employment rights of minority and female workers.

For his part, the Governor acted pursuant to his constitutional authority (NY Const, art IV, § 3) to see to the faithful execution of our laws and to specify terms and conditions of contracts entered into by the State. In this tenor, Executive Order No. 45 required that all State contracts include a provision incorporating a program that would insure that employees or applicants "are afforded equal employment opportunities.” To allow the contractors flexibility, the order did not spell out precise requirements, except to indicate the program was to be one "to achieve goals and timetables designed to reflect adequate utilization of minority group persons and women”. Instead, it set up an Office of State Contract Compliance (OSCC) within the State Division of Human Rights, the agency already charged by the Legislature with the implementation of antidiscrimination laws. The OSCC was commissioned to develop and enforce appropriate contract terms designed to effectuate the order (9 NYCRR 3.45).

No terms had been issued by the OSCC by the time the petitioners, as representatives of employers and unions in the construction industry, commenced this article 78 proceeding. There was, therefore, no reason to assume that, when issued, the "goals” and "timetables” would not be ones directed at the undisputably permissible goal of attracting qualified minority applicants, rather than granting some form of blunderbuss preferential treatment to minorities and women in the potential labor market. In particular, especially in the light of the Broidrick guidelines, nothing compelled the conclusion that a fixed percentage or quota formula would be imposed.

As for the city, the rules and regulations here challenged were promulgated for the Mayor by his city administrator. Their issuance was authorized by Mayoral Executive Order No. 71, which, undisturbed by Broidrick and with seeming uncontestability, declared it the policy of the city to insure that employment of qualified persons on municipal contracts be free from discrimination on account of race, creed, color or national origin (and, by later amendment, of sex and age). The rules at issue replaced an earlier set that had been struck down by Broidrick as an unconstitutional application of Order No. 71 because they had required contractors to commit themselves to employ specified percentages of minority workers by specified dates on all their construction projects, whether public or private and whether funded by the city or not.

The new regulations carefully avoided these pitfalls. While they called upon each construction contractor to submit a proposed program containing specific steps and actions which, if diligently applied, could be expected to result in employment opportunities substantially equivalent to minority representation in the available work force, they were made applicable only to city and city-assisted construction contracts. Moreover, failure to achieve an anticipated goal was to bring no automatic imposition of sanctions, but instead would occasion review, opportunity for explanation and, where necessary, modification. On such review, lack of progress was to be but a factor in determining whether the efforts to apply the employer’s program had been carried out in good faith.

Furthermore, neither the contractor nor the city were left to flounder in structuring a proposed plan, for the rules indicated that the employer’s program could include provision for notifying relevant labor, minority and community referral agencies and city and State employment agencies of job openings on its city projects; maintaining files containing information on female and minority persons referred to the contractor for employment together with the action that had been taken with respect to their applications; disseminating its Equal Employment Opportunity (EEO) policy within its own organization as well as to subcontractors and suppliers; enlisting the help of minority and other recruitment and training organizations, news media, trade schools and secondary schools within the City of New York; evaluating women and minority personnel for promotion opportunities and encouraging them to seek such opportunities.

As the rules make clear, the idea was to roll back and not to countenance the perpetuation of discrimination. Though race-conscious and sex-conscious, as well they might be if the attitudes and effects engendered by past discrimination were to be addressed in any meaningful way, they did not impose hiring or training quotas or otherwise depart from the principle of merit selection. Indeed, as in the case against the State, the article 78 proceeding mounted against the city pointed to no application of the city’s rules and regulations that would in any guise constitute "a cover for the functional equivalent of a quota system” (University of Cal. Regents v Bakke, 438 US 265, 318; United Steelworkers of Amer. v Weber, 443 US 193) or otherwise violate sound principles against illegal reverse discrimination.

Far from exceeding the bounds of gubernatorial and mayoral power, as an examination of legislative history emphasizes, these executive actions did no more than give effect to the policies, expressed and implied, of the laws of this State. As early as 1945, the then State Commission Against Discrimination was already empowered to direct the taking of "such affirmative action including (but not limited to) hiring, reinstatement or upgrading of employees” (Executive Law, § 132; emphasis mine). By 1962 and 1963, when the commission had been renamed the State Commission for Human Rights (L 1962, ch 165), the Governor was able to announce that $400 million appropriated by the Legislature for State-sponsored contracts would be awarded in conjunction with a program to increase jobs to help assure realization of equality of job opportunities in New York State and towards which there were to be "positive action to promote equality of opportunity” in the construction industry in recruitment, training and employment (Public Papers of Governor Nelson A. Rockefeller [1963], pp 865-866 [emphasis mine]). The same year a new contract form for State contracting agencies, still in use today, required contractors to "take affirmative action * * * [against discrimination because of race, creed, color or national origin] by way of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or termination, rates of pay or other forms of compensation, and selection for training or retraining, including apprenticeship and on-the-job training”. (Id., at pp 935-936 [emphasis mine].)

Five years later, in 1968, the legislative revision of the Human Rights Law, in declaring that the purpose of the law was, inter alia, to afford to all citizens "an equal opportunity to enjoy a full and productive life”, spoke in terms of "encouraging] programs designed to insure that every individual shall have an equal opportunity to participate fully in the economic * * * life of the state” free from discrimination in employment (Executive Law,. § 290, subd 3; § 297, subd 4, par c). The following year an amendment authorized the Human Rights Division to work to increase the employment of members of any minority group exhibiting a disproportionately high unemployment rate (L 1969, ch 458, now codified as Executive Law, § 296, subd 12). And, in 1972, echoing this legislative sentiment, the State Department of Labor issued new regulations pursuant to article 23 of the Labor Law described as intended to prohibit "discrimination based on race, creed, color, national origin [and] sex * * * in apprenticeship programs, by requiring affirmative action” (12 NYCRR 600.1 [emphasis mine]).

Executive Order No. 45 followed, along what had thus become a well-blazed trail, on the heels of these and other even more practical expressions of support for such policies, including regular legislative appropriations "for State participation in affirmative action programs”. (Cf. Labor Law, §§ 220-e, 815, subd 5; Civil Rights Law, §§ 40-c, 43). Obviously, it embodies an effort to deal with matters identified by the Legislature as the focus of public concern, and to do so in a manner consistent with State law and public policy. And, certainly no less consonant with the thrust of relevant legislation was the Mayor’s Executive Order No. 71, for it carries forward the unequivocal expression of policy in section 343-8.0 of the Administrative Code of the City of New York, which provides that: "It shall be unlawful for any person engaged in * * * construction * * * pursuant to a contract with the city * * * to refuse to employ or to refuse to continue in any employment any person on account of the race, color or creed of such person.” (Local Laws, 1942, No. 44 of City of New York, eff Sept. 9, 1942.)

On the State level, the executive branch is also authorized by statute to make contracts for the construction, alteration and repair of public buildings and for the procurement of materials, equipment and supplies (State Finance Law, § 163; see Public Buildings Law, § 8). These statutes indicate a legislative policy favoring the setting of standards through which persons dealing or seeking to deal with the State may be furnished with notice of the terms and conditions that attend such relationships as well as some assurance against institutional caprice. It should be apparent, then, that the issuance of an executive order mandating that particular standard provisions and clauses appear in State contracts comes well within the scope of executive authority conferred and contemplated by the statutes.

Apart from this, however, Executive Order No. 45 may be viewed, more fundamentally, as issued pursuant to the constitutionally protected contract-making power that inheres in all "member[s] of this state” (NY Const, art I, § 1). Against the constitutional and statutory backdrop for the exercise of the State’s contracting powers, the executive order would fall well within the range of authority reserved to the executive branch of our State government, and of the Governor as its chief executive officer, to "expedite all such measures as may be resolved upon by the legislature” and, as already indicated, to "take care that the laws are faithfully executed” (NY Const, art IV, § 3).

In addition, I note that the Constitution of the State of New York does not establish a form of government in which the Legislature is supreme (see Matter of La Guardia v Smith, 288 NY 1, 5-6, 10; Matter of Village of Saratoga Springs v Sara-toga Gas, Elec. Light & Power Co., 191 NY 123, 132-138), and, indeed, on the broader plane of American political experience, the actual delineation of power between the executive and the Legislature has never been at all clear-cut, either in theory or in practice. Pertinently, the framers of the Federal Constitution rejected a proposal that would have limited the function of the executive to enforcement of the laws enacted by Congress and instead assigned that office a much more independent role (De Chambrun, The Executive Power in the United States: A Study of Constitutional Law, 111 [1874]).

So, it is recognized that each branch, to protect its own independence, to some extent may exercise inherent powers that, strictly speaking, may be thought to belong to another (see Youngstown Co. v Sawyer, 343 US 579, 637 [Jackson, J., concurring]; Hall, Constitutional Law, p 21). Moreover, as long as it does not contravene a statute, the executive branch may freely enter into contracts on whatever conditions and provisions it deems will best promote the interests of the government (cf. Kern-Limerick, Inc. v Scurlock, 347 US 110; Locke, Second Treatise on Government, § 159), a power that certainly should not be construed in a more limited fashion when its purpose is to eradicate the manifestations of racial discrimination.

The public interest is, in fact, even more directly involved in such a case when, aside from the incalculable importance of social justice to the welfare of the State and Nation, the perpetuation of the problem raises spectres of labor unrest, and of an economy burdened by an economically disenfranchised and unproductive class yet tolerating a restricted labor pool with attendant increases in costs. (See Associated Gen. Contrs. of Mass. v Altshuler, 490 F2d 9, cert den 416 US 957; Farmer v Philadelphia Elec. Co., 329 F2d 3, 8; Brunsfeld & Sons v Board of Educ., 54 Ill App 3d 119; Weiner v Cuyahoga Community Coll. Dist., 19 Ohio St 2d 35; Note, Gubernatorial Executive Orders as Devices for Administrative Direction and Control, 50 Iowa L Rev 78.)

These irresistible bases for Executive Order No. 45 and the rules and regulations before us, we now turn to examine Matter of Broidrick. Carefully read, it supports the State and city in the cases before us on all counts. As though possessed of the prescience that the present litigation would arise in due course, it took care to make clear that discriminatory practices are appropriate areas for "a broad declaration of policy, leaving to the executive discretion to determine the particular otherwise valid means necessary to enforce antidiscriminatory prohibitions”. And, even while it was holding the old city regulations objectionable because they mandated quotas, were unrelated to cost considerations and attempted to impose these dictates beyond city contracts, it recognized that "a policy limited to increasing the pool of eligibles for employment, by including previously excluded minority workers” might well call for an opposite result (39 NY2d, pp 646-647).

Order No. 45 and the 1977 regulations do call for such a result. They do not impose "quotas”. They seek to increase the pool, of previously excluded eligible minority applicants. They apply only to State and State-assisted projects in the one case and city and city-assisted ones in the other. They do not even mandate a rate for accepting minority apprentices. And, though a contractor must make diligent good faith efforts to implement a program, there is no requirement that it hire a specific number of minorities or that parity be reached between its work force and the minority work force at large. Finally, an expressed governmental concern in each case is cost minimization and other economic factors related directly to governmental contracts and not to an unrelated extrinsic policy.

For all these reasons, deference to a most compelling State policy and the permissible practices undertaken by those charged with its enforcement require that, in each case, the order of the Appellate Division be reversed and the petition dismissed, or, in the alternative, on conversion of the proceedings to actions for declaratory judgment, that there be declarations that Order No. 45 and the 1977 rules and regulations are constitutional.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judge Meyer concurs.

Order affirmed, without costs.

      . The term "affirmative action” was already part of the remedial provisions in Federal and State labor relations‘laws. (49 US Stat 449; US Code, tit 29, § 151; Labor Law, § 700.) Interpretations of those statutes were relied upon in the drafting of the Law Against Discrimination. (See Report of the New York State Temporary Commission Against Discrimination, NY Legis Doc, 1945, No. 6, pp 19, 33.)

      . Some conception of the serious extent of the disproportionality, both then and now, may be garnered from State Profile of Employment and Unemployment, 1977 (Washington DC, US Bureau of Labor Statistics, 1978); Foner, Organized Labor and the Black Worker, 1619-1973.

      . The regulations go on to state: “Affirmative action is not mere passive nondiscrimination. It includes procedures, methods and programs for the identification, positive recruitment, training and motivation of present and potential minority and female (minority and nonminority) apprentices. It is action which will equalize opportunity in apprenticeship so as to allow full utilization of the work potential of minorities and women. The overall result to be sought is equal opportunity in apprenticeship for all individuals participating in or seeking entrance to the State’s labor force” (12 NYCRR 600.5[b]).

      . (L 1973, ch 50; L 1974, ch 50; L 1975, ch 50; L 1976, ch 50; L 1977, ch 50; L 1978, ch 50.)