In the Matter of Thomas P. O'Neill, et al., Appellants-Respondents,v.Ann Pfau,, Respondent-Appellant.

Brief

N.Y.May 7, 2014

To Be Argued By: Lee Alan Adlerstein Time Requested: 15 minutes QCOUtt of ~peals of tbe ~tate of jietu ~otk In the Matter of the Application of THOMAS P. O'NEILL, as President of the Suffolk County Court Employees Association, Inc. ANTHONY CETTA, DONALD CURABA, MARIO D' AMARO, CARMINE LORENZO and ANTHONY PROCIDA, Appellants-Respondents, - against- HON. ANN PFAU, as Chief Administrative Judge of the OFFICE OF COURT ADMINISTRATION, STATE OF NEW YORK - UNIFIED COURT SYSTEM, Respondent-Appellant. REPLY BRIEF FOR RESPONDENT -APPELLANT CHIEF ADMINISTRATIVE JUDGE OF THE COURTS LEE ALAN ADLERSTEIN PEDRO MORALES Of Counsel JOHN W. McCONNELL New York State Office of Court Administration 25 Beaver Street, 11 th Floor New York, New York 10004 Tel: (212) 428-2150 Fax: (212) 428-2155 Attorney for Respondent-Appellant Date Completed: December 23,2013 Appellate Division - Second Department Docket No. 2011-02235 Suffolk County Clerk's Index No. 15871/05 TABLE OF CONTENTS Table of Authorities ................................................ .ii Preliminary Statement ............................................... 1 Argument ......................................................... 2 THE ADMINISTRATIVE RECORDS COVERING THE COURT SECURITY TITLE SERIES DEMONSTRATE THAT THE CHIEF ADMINISTRATIVE JUDGE'S RETROACTIVE REALLOCATION IN DECEMBER 2004 OF THE NEW YORK STATE COURT OFFICER TITLE WAS RATIONAL ......................... 2 Conclusion ........................................................ 8 TABLE OF AUTHORITIES Cases Benson v. McCaul, 268 A.D.2d 756, 702 N. Y.S.2d 164 (3rd Dept. 2000) ..................... 2 Civ. Servo Employees Ass'n, Inc .. Local 1000, AFSCME. AFL-CIO v. State of New York Unified Ct. Sys., 55 A.D.3d 1070, 865 N.Y.S.2d 753 (3rd Dept. 2008) ..................... 3 Global Tel*Link v. State. Dep't ofCorr. Servs., 70 A.D.3d 1157, 894 N. Y.S.2d 580 (3rd Dept. 2010) .. . . . . . . . . . . . . . . . . . .. 2 McGreeyy v. Classification Rev. Bd. orUnified Ct. Sys. of State of N.Y., 154 A.D.2d 678, 546 N. Y.S.2d 882 (3RD Dept. 1989) .................... 3 Scherbyn v. Wayne-Finger Lakes Bd. or Co-op. Educ. Servs., 77 N.Y.2d 753, 573 N.E.2d 562 (1991) ............................... 2 Solomon v. Lancaster, 19 A.D.3d 334, 798 N.Y.S.2d 43 (1 st Dept. 2005) ..................... 2, 6 Regulations N.Y. Compo Codes R. & Regs. tit. 22, § 25.5(c) .......................... 5 11 Preliminary Statement Cross-Appellant Chief Administrative Judge ("CAJ") respectfully submits this reply brief in further support of her appeal from the ruling of the Appellate Division modifying the New York State Court Officer title from the JG- 17 to JG-18 salary grade, from December 22,2004 to January of that year. The reply brief of the cross-respondents ("SCCOs") re-states the reasoning of the Appellate Division -- that no articulated rational basis having been enunciated at the time of December 2004 adjustment, retroactivity was presumptively not rational. Given the full record, this conclusion was wrong. Indeed, given the record, no separate articulation was required. Just as importantly, the SCCOs do not address the rational for the adjustment: that having determined that 9ne aspect of the January 2004 adjustment required correction, to the advantage of the employees, and that the correction should cover the full term of service under the new duties, the CAJ properly extended the adjustment to cover the full term. ARGUMENT THE ADMINISTRATIVE RECORDS COVERING THE COURT SECURITY TITLE SERIES DEMONSTRATE THAT THE CHIEF ADMINISTRATIVE JUDGE'S RETROACTIVE REALLOCATION IN DECEMBER 2004 OF THE NEW YORK STATE COURT OFFICER TITLE WAS RATIONAL. The standard of appellate review in an Article 78 challenge to an administrative determination not based on a quasi-judicial hearing is "whether the agency determination was arbitrary and capricious or affected by an error of law." Scherbyn v. Wayne-Finger Lakes Bd. of Co-Op Educ. Services, 77 N.Y.2d 753, 758 (1991). Under this standard, the Article 78 court conducts a de novo review of the administrative record to determine if the determination at issue has a sound basis in reason and fact. See Scherbyn, 77 N.Y.2d at 759. Where the underlying record "is sufficiently developed to provide an adequate basis upon which" to conduct such a review, the absence of a written statement of the rationale for the determination does not preclude the court's review. Benson v. McCaul, 268 A.D.2d 756, 757-758 (3rd Dept. 2000) (citing cases); see Global Tel*Link v. State N.Y. Dept. of Correctional Serv., 70 A.D.3d 1157 (3rd Dept. 2010); Solomon v. Lancaster, 19 A.D.3d 334, 336 (1 8t Dept. 2005). 2 Here, the administrative record to be reviewed is not limited to the statements made -- or not made -- by Administrative Direc~or Lawrence K. Marks in his affidavit in opposition to the Article 78 petition, but also encompasses administrative documents pertaining to the creation of the new court security title series appended to the affidavit. These documents include the announcement of the promulgation of the new title series (R.30-32 and 155), the January and December 2004 administrative orders (R.33-55 and 123-55), and the title standards comprising both the current and former security title, including, but limited to, the title standards for the prior Court Officer (JG-16) (R.I00 and 61-63) and Senior Court Officer (JG-I8) (R.l 08-11) titles as well as the current New York State Court Officer (JG-I8) title (R.38-41 and 155). This ample record -- not the narrowly defined one urged by the SCCOs -- is more than sufficient to establish a rational basis. It is well-settled that the allocation of the salary grade of a particular job title may be based on the reporting and supervising relationships between and among court titles as well as the comparability of the duties and responsibilities of the proposed title with those of previously established or current court titles. See Civ. Servo Employees Assn., Inc. v . State of N.Y. Unified Ct. Sys., 55 A.D.3d 1070, 1070-71 (3rd Dept. 2008); McGreeyy v. Classification Rev. Bd. of the 3 Unified Ct. Sys. of State of N.Y., 154 A.D.2d 678, 679 (2d Dept. 1989), Iv denied, 75 N.Y.2d 707 (1990). Here, the CAJ's re-allocation of the New York State Court Officer title to the JG-18 salary grade in December 2004 was patently rational where the JG-18 salary grade is consistent with the salary grades of other security positions as well as predecessor security titles having comparable levels of duties and responsibilities. Support for this position is provided by the title standards for the current and former court security title series contained in the record. Those title standards show, among other things: (I) the New York State Court Officer is properly allocated to a salary grade between the New York State Court Officer Trainee (JG-14) title and the New York State Court Officer-Sergeant (JG-19) titles; (2) incumbents in the JG-14 trainee title undergo instruction for eventual appointment to the Court Officer title, the line security title for all trial courts (R.34-37 and 93); and (3) consequently, the Court Officer title is allocated to a salary grade above the trainee title. The title standards also demonstrate that incumbents in the JG-19 sergeant title supervise both the trainee and the Court Officer titles (R.42-46 and 93-94): the Court Officer title was thereby allocated to a salary grade below the sergeant title. Moreover, while the Court Officer title was originally allocated to the JG- 4 17 salary grade, its subsequent re-allocation to the JG-18 salary grade is consistent with the former Senior Court Officer (JG-18) title, a title which performed a comparable function under the prior title series, namely serving as the promotional title for the entry level security title and serving as the line security title in courts of general jurisdiction (R.34-41, 61-63, 92-94, and 108-11 0). Finally, consistent with the authority granted by 22 N.Y.C.R.R. § 25.5 (c), the adjustment from the JG-17 to JG-18 salary grade was made retroactive to January 2004 where doing so enabled court officers to receive the salary increments reflecting the move from the JG-16 salary grade to the JG-18 salary grade for the entire period following the reclassification -- matching the SCCOs' entitlement had the Court Officer title been allocated to the JG-18 salary grade on January 8, 2004. The SCCOs argue that the rationale proffered by the CAJ for its decision should not be considered because it was not set forth in the CAJ's answer to the petition. This argument -- inviting a myopic approach -- is without merit. First, the CAJ has consistently asserted this rationale in opposition to the petition before both the Supreme Court and Appellate Division.1 Second, the SCCOs never objected to the stated rationale -- either as to its presentation or its merits -- in their second amended petition which was served after the rationale was submitted to the 1 The Supreme Court cited this stated rationale in its decision (R.14). 5 Supreme Court. Third, as we have noted, at pp. 2-3, supra, even where the basis for the determination at issue is not set forth in an answer or affidavit verified by person with personal knowledge of the facts, the court may nonetheless review the determination where an adequate record exists that makes the full scope of considerations capable of review. See Solomon v. Lancaster, 19 A.D.3d 334, 336 (1 5t Dept. 2005). Here, for the reasons stated above, such a record is the administrative directives and court officer title standards. In short, given that the rational basis standard of review entails a wide angle examination of the record befitting the CAl's broad discretionary authority, the skewed examination urged by the SCCOs should be rejected. * * * In sum, SCCO's claims that the record lacks a sufficient statement of the grounds of the retroactive application of their upward salary adjustment is meritless. Like the change in their duties, that rationale is readily apparent from the full record below: their duties increased significantly in January 2004 and principles of logic, equity and common sense dictated that the further adjustment making them whole should be applied for the full term of their recent service in 6 these new duties. We respectfully submit that the rationale is neither subtle nor obscure, and required no separate articulation to assure its legal sufficiency. On this point alone, the order of the Appellate Division should be reversed. 7 Dated: CONCLUSION THE DECISION AND ORDER OF THE APPELLATE DIVISION SHOULD BE MODIFIED, AND THE PETITION SHOULD BE DISMISSED. New York, New York December 23,2013 Respectfully submitted, JOHN W. McCONNELL, Counsel Office of Court Administration 25 Beaver Street - 11 th Floor New York, New York 10004 (212) 428-2150 Attorney for Respondent-Appellant By: V-Q~ LEE ALAN ADLERSTErliJ LEE ALAN ADLERSTEIN PEDRO MORALES Of Counsel 8