In the Matter of Thomas P. O'Neill, et al., Appellants-Respondents,v.Ann Pfau,, Respondent-Appellant.BriefN.Y.May 7, 2014To be Argued by: DAVID SCHLACHTER (Time Requested: 30 Minutes) Suffolk County Clerk’s Index No. 15871/05 Appellate Division–Second Department Docket No. 2011-02235 Court of Appeals of the State of New York 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, Petitioners-Appellants-Respondents, – against – HON. ANN PFAU, as Chief Administrative Judge of the OFFICE OF COURT ADMINISTRATION, STATE OF NEW YORK – UNIFIED COURT SYSTEM, Respondent-Respondent-Appellant. REPLY BRIEF FOR PETITIONERS- APPELLANTS-RESPONDENTS DAVID SCHLACHTER, ESQ. Attorney for Petitioners-Appellants- Respondents 626 RXR Plaza Uniondale, New York 11556 Tel.: (516) 522-2540 Fax: (516) 868-1939 APL-2013-00201 Date Completed: December 9, 2013 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 POINT I RETROACTIVELY CHANGING THE GRADE OF THE NEW YORK STATE COURT OFFICER TITLE WAS ARBITRARY AND CAPRICIOUS ........................................................................................ 2 POINT II APPELLANTS-RESPONDENTS TIMELY CHALLENGED THE DETERMINATION THAT THE TITLE STANDARDS FOR THE NYS COURT OFFICER TITLE WERE SUBSTANTIALLY DIFFERENT THAN THOSE FOR THE FORMER COURT OFFICER TITLE ............................................................................................. 6 POINT III THE DUTIES OF NYS COURT OFFICER (JG-18) ARE SUBSTANTIALLY THE SAME AS THE DUTIES OF THE FORMER COURT OFFICER (JG-16) ........................................................... 9 CONCLUSION ........................................................................................................ 14 ii TABLE OF AUTHORITIES Page(s) Cases: AAA Carting and Removal, Inc. v. Town of Southeast, 17 N.Y.3d 136 (2011) ...................................................................................... 4 Association of Secretaries to Justices of the Supreme and Surrogate’s Courts in the City of New York v. Office of Court Administration, 75 N.Y.2d 460 (1990) .................................................................................... 10 Cove v. Sise, 71 N.Y.2d 910 (1988) .................................................................................... 11 Figel v. Dwyer, 75 A.D.3d 802 (3d Dep’t 2010) ................................................................... 4-5 Gavigan v. McCoy, 37 N.Y.2d 548 (1975) .................................................................................... 10 Matter of Astoria Gas Turbine Power, LLC v. Tax Commn. of City of N.Y., 7 N.Y.3d 451 (2006) ...................................................................................... 13 Matter of Bellacosa v. Classification Review Board of the Unified Court System of the State of New York, 72 N.Y.2d 383 (1988) .................................................................................... 10 Matter of Suffolk Regional Off-Track Betting Corp. v. NYS Racing and Wagering Board, 11 N.Y.3d 559 (2008) .................................................................................... 13 Matter of Trump-Equitable Fifth Ave. Co v. Gliedman, 57 N.Y.2d 588 (1982) ...................................................................................... 4 McKillop v. Lippman, 9 Misc. 3d 635 (N.Y. County, 2005) ............................................................. 10 Statutes & Other Authorities: Judiciary Law § 37(3) .......................................................................................... 2, 13 Judiciary Law § 37(11) .................................................................................. 2, 12, 13 CPLR 2221 ................................................................................................................. 6 CPLR Article 78 ......................................................................................................... 4 iii CPLR Article 7804(d) ................................................................................................ 2 CPLR § 5701(a)(2)(viii) ............................................................................................ 6 1 PRELIMINARY STATEMENT This proceeding was brought by the individual appellants-respondents and the Suffolk County Court Employees Association, Inc., their collective bargaining representative, on behalf of members of the collective bargaining unit employed as NYS Court Officers on January 8, 2004 or December 22, 2004. (R-84)1 The appellants-respondents appeal from that portion of the Order of the Appellate Division that reversed the Order of Special Term (Whelan, J.) and dismissed as time-barred their claim that the January 8, 2004 reclassification did not entail a substantial change in the duties of the position of NYS Court Officer from those of Court Officer. The appellants-respondents argued in their initial brief that the claim was timely and that the change in duties was not substantial. The respondent- appellant addressed these issues in its responsive brief, and this brief is in reply to that response. The respondent-appellant has cross-appealed from that portion of the Appellate Division Order that affirmed the holding of Special Term (Whelan, J.) that it was arbitrary and capricious for the respondent-appellant to issue an administrative order on December 22, 2004, modifying the NYS Court Officer title from JG-17 to JG-18 retroactive to January 8, 2004. This appellants-respondents’ brief answers the arguments made by the respondent-appellant in its brief. 2 POINT I RETROACTIVELY CHANGING THE GRADE OF THE NEW YORK STATE COURT OFFICER TITLE WAS ARBITRARY AND CAPRICIOUS On December 22, 2004, the respondent-appellant CAJ amended the Classification Plan by changing the grade of the New York State Court Officer title from JG-17 to JG-18, retroactive to January 8, 2004. By making the change retroactive to the date of the earlier amendment, the CAJ deprived the appellants of the salary increases to which they would have been entitled pursuant to Judiciary Law Section 37(11) and of continuous service credit pursuant to Judiciary Law Section 37 (3). The CAJ acted sua sponte, did not offer any explanation for making the change, and did not offer any explanation for making the change retroactive. The appellants-respondents brought this proceeding, inter alia, to challenge the retroactive effective date of the amendment. The appellants-respondents alleged in their petition that the CAJ acted arbitrarily and capriciously in making the making the change in salary grade retroactive to January 8, 2004. (R-190) CPLR Article 7804(d) provides, “[w]here there is an adverse party, there shall be a verified answer, which must state pertinent and material facts showing the grounds of the respondent’s actions complained of.” The respondent-appellant’s answer to the petition does not even 3 purport to set forth any facts showing the grounds for making the change retroactive. (R-190) In response to the petition the respondent-appellant submitted the affidavit of Lawrence K. Marks, in which he did not offer any explanation for making the change retroactive (R-83), and the affidavit of Pedro Morales, which addressed only the issue of timeliness (R-168). The respondent-appellant argued that the selection of the effective date was within the broad discretion afforded to the CAJ, but did not provide any explanation for making the change retroactive. The Supreme Court (Whelan, J.) specifically found that the respondent-appellant had failed to offer any explanation for making the change retroactive. (R-14, 20) On appeal, the Appellate Division similarly found that although the CAJ had broad discretion, the respondent- appellant had failed to offer any explanation. (R-202) In its appeal to this Court, the respondent-appellant did not identify any explanation in the record, but instead argued that the CAJ acted “in a manner designed to confer a benefit but avoid the grant of a windfall” (Brief for Respondent Appellant, p. 1), that the “new title more appropriately had merited a two-grade upward adjustment…and made retroactive payments placing all title holders in the position they have occupied had they received a seamless, two-grade reclassification” (id., at 2), that “the factors underlying the retroactive grade adjustment…were self-evident” (id., at 26), and that making the reallocation prospective “would grant [appellants-respondents] an 4 unjustified financial windfall” (id., at 26). None of these possible explanations is provided on the record before Special Term. The cost figure of $5.4 million offered in a footnote to the Affidavit of Lawrence K. Marks is the cost of treating the reclassification as a reallocation as of January 8, 2004 and applying that determination to all NYS Court Officers and Court Officer-Sergeants throughout the State (R-99). As the Supreme Court (Whelan, J.) noted its decision, this proceeding applies only members of the Suffolk County bargaining unit who were employed as NYS Court Officers on the relevant dates and does not apply to NYS Court Officers in other bargaining units. (R-18) Court Officer-Sergeants are no longer included as parties to this proceeding, and the cost of including them should not be part of any cost estimate. The respondent in an Article 78 proceeding must set forth the factual basis for its decision. It is insufficient for counsel to speculate what the reasons could have been. “A fundamental principle of administrative law long accepted…limits judicial review of an administrative determination solely to the grounds invoked by [the respondent], and if those grounds are insufficient or improper, the court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis.” AAA Carting and Removal, Inc. v. Town of Southeast, 17 N.Y.3d 136, 144 (2011); Matter of Trump-Equitable Fifth Ave. Co v. Gliedman, 57 N.Y.2d 588, 593 (1982); Figel v. Dwyer, 75 A.D.3d 802, 804 (3d 5 Dept. 2010). Both Special Term and the Appellate Division found that the respondent-appellant failed to provide any explanation for making the December 22, 2004 administrative order retroactive to January 8, 2004. The respondent- appellant has been unable to even allege to this Court that they had done so. Special Term (Whelan, J.) held that the respondent-appellant did not have authority to reallocate the NYS Court Officer title retroactively. Since the Appellate Division found that “no rational basis for retroactivity appears in the record”, it explicitly stated that it not need address the issue. 6 POINT II APPELLANTS-RESPONDENTS TIMELY CHALLENGED THE DETERMINATION THAT THE TITLE STANDARDS FOR THE NYS COURT OFFICER TITLE WERE SUBSTANTIALLY DIFFERENT THAN THOSE FOR THE FORMER COURT OFFICER TITLE On December 22, 2004, the CAJ issued an order modifying the Classification Plan by changing the grade of the New York State Court Officer title from JG-17 to JG-18 retroactive to January 8, 2004, the effective date of the prior amendment to the Classification Plan. Special Term (Whelan, J.) concluded that the agency reconsideration “appears to have been a fresh, complete and unlimited examination into the merits (citations omitted)”. The Appellate Division reversed, holding that “the December Order did not constitute the sort of ‘fresh, complete and unlimited examination into the merits’ as would suffice to revive the Statute of Limitations (citations omitted). Acting sua sponte, the CAJ issued an administrative order modifying the order which amended the Classification Plan retroactive to January 8, 2004. The modification is the equivalent of the granting of a motion to renew or to reargue, either of which would measure the time to appeal from the service of the modified order. CPLR 2221, 5701(a)(2)(viii)(right to appeal from an order which “grants a motion for leave to reargue made pursuant to subdivision (d) of rule 2221 or determines a motion for leave to renew made pursuant to subdivision (e) of rule 7 2221”) Since the January 8, 2004 Order was modified by the December 22, 2004 Order, this case is not similar to a case in which reargument is denied. Counsel for the respondent-appellant has argued that the review was limited to the appropriate grade for New York State Court Officer title and did not include a review of whether the duties of the new title of the New York State Court Officer were substantially different from the duties of the former Court Officer title. There is absolutely nothing in the record to support this allegation. In its brief to Special Term, counsel to the respondent-appellant asserted that the CAJ had determined that the duties of the New York State Court Officer title were similar to those of Senior Court Officer. Again, there is absolutely nothing in the record to support this argument. However, if the respondent-appellant “determined that the JG-18 salary grade was more appropriate, because the NYS Court Officer title is roughly comparable to the former Senior Court Officer title” (R-14) (quoting from the brief submitted to Special Term on behalf of the respondent-appellant), the respondent- appellant would have had to compare the duties of the NYS Court Officer title not only with the Senior Court Officer title but also with the Court Officer title to see which was “more appropriate”. This review would require the CAJ to examine the similarities and differences among the NYS Court Officer, Court Officer and Senior Court Officer titles. 8 It is the respondent-appellant who argues that the appellants-respondents are barred by the statute of limitations from challenging the determination that the duties of New York State Court Officer were substantially different from the duties of the former Court Officer title. Accordingly, it is the respondent-appellant’s burden to establish that the claim is time barred, and the respondent has failed to include any evidence in its answer and supporting affidavits that the CAJ limited his consideration to the appropriate grade for New York State Court Officer title and did not consider the similarity of the duties to the Court Officer title. 9 POINT III THE DUTIES OF NYS COURT OFFICER (JG-18) ARE SUBSTANTIALLY THE SAME AS THE DUTIES OF THE FORMER COURT OFFICER (JG-16) The appellants-respondents alleged in their petition that the title standards for the NYS Court Officer title set forth in the January 2004 amendments to the Classification Plan were substantially the same as the title standards for the former Court Officer title. The Court at Special Term (Whelan, J.) compared the title standards of the New York State Court Officer title with the title standards for Court Officer and found that there was no substantial difference between them. On appeal the Appellate Division did not reach the issue because it found that the claim was barred by the statute of limitations. While the Judiciary Law and the Rules of the Chief Administrative Judge delegate broad discretion to the CAJ in classifying and allocating positions in the Unified Court System, the CAJ is nonetheless bound by the Judiciary Law requirement that if there is a reclassification in which there is no substantial change in duties, the reclassification must be treated for salary purposes as if there had been a reallocation. This Court has established that it is not the level of the Court or the size of the court but the duties set forth in title specifications that govern the allocation of 10 positions in the Unified Court System. Association of Secretaries to Justices of the Supreme and Surrogate’s Courts in the City of New York v. Office of Court Administration, 75 N.Y.2d 460 (1990); Matter of Bellacosa v. Classification Review Board of the Unified Court System of the State of New York, 72 N.Y.2d 383, 391 (1988)(“…the duties and responsibilities set forth on the two job titles under consideration were virtually identical”.); Gavigan v. McCoy, 37 N.Y.2d 548 (1975)(“[d]eterminative of what duties are properly performed within a given title are the job specifications of the title”). In McKillop v. Lippman, 9 Misc.3d 635 (N.Y. County, 2005), the Supreme Court Officers Association brought a similar proceeding challenging the failure of the Office of Court Administration to award continuous service credits to members whose salary grades were raised by the January 8, 2004 reclassification of the court security series. In that case the Supreme Court (Richter, J), found that there was a substantial differences in the duties and responsibilities of officers assigned to the upper and lower courts. Justice Richter cited the following as the “crucial differences”: (1) higher level courts hold more jury trials; (2) cases in higher level courts are more likely to attract public attention; (3) officers in higher level courts are more likely to be guarding more dangerous individuals; and (4) it is more probable that officers in higher level courts will be dealing with sequestered juries. The Supreme Court (Whelan, J.) compared the duties and responsibilities of the 11 New York State Court Officer and Court Officer titles. With respect to jury trials, he wrote (R-16): What has to be examined is the respective duties of each title and it is clear that both titles performed duties with regard to juries and jury trials. In fact, Court Officers assigned to the Suffolk county District Court, just as those employed in similar courts, were tasked to escort, protect, and assist jurors on a daily basis. Such was not a new or different task; it was a preexisting one under the JG-16n title. It certainly did not constitute a “substantial change in duties and responsibilities.” In addressing the claim that the cases in the higher courts were more likely to attract public attention, Justice Whalen noted an absence of proof that the cases in the higher courts were more likely to attract attention, that the claim is not reflected in the duties set forth in the title standards, and that “it does not reflect the reality of the sheer volume of litigants, family members, attorneys, and jurors, that traverse the halls of the District and Family Courts each day.” The claim that officers are more likely to be guarding dangerous individuals was not made in this proceeding, and the issue is not addressed in the title standards. The respondent-appellant argues that the rejection of the challenge to the separate Court Officer (JG-16) and Senior Court Officer titles in Cove v. Sise, 71 N.Y.2d 910 (1988), leads to the “logically inescapable conclusion” that “the former Court Officers had substantially increased legal duties in the new, consolidated title….”(Brief for Respondent-Appellant, p. 21) petitioners sought a 12 consolidation of the Court Officer (JG-16) and Senior Court Officer (JG-18) titles. The appeals to the CAJ and Classification Review Board were denied. In denying the appeal, the Board stated that the essence of the two job titles was “so similar as to warrant serious de novo review for the purpose of possible consolidation in the future under a common title”, but the Board rejected the need for a common classification as conflicting with its finding that “there is insufficient basis upon which to conclude that JG-16 is inappropriate for the lowest level security title in the Plan, i.e., Court Officers.” Special Term read the Board’s reference to possible future consolidation as a factual finding that immediate revamping was required and directed to board to implement its finding. The Appellate Division reversed and dismissed the petitions, concluding that the Board’s determinations were not irrational or arbitrary. This Court affirmed. (“Petitioners made no such showing with respect to the Board’s conclusion, upon an enumeration of the pertinent factors supporting this entry-level title and promotional-level title, that petitioners had presented insufficient basis upon which to conclude that the allocation of the [court officer] title in the Plan to JG-16 is improper, unfair or inequitable.”) The finding that the two titles could be separate is not inconsistent with a finding that a reclassification to a single title “represents no substantial change in duties and responsibilities from those associated with the former title.” Judiciary Law Section 37(11) 13 While the statutes grant the CAJ broad discretion to classify and reclassify and to allocate and reallocate, the CAJ is nonetheless bound by Judiciary Law Sections 37(11) and 37(3), and does not have the discretion to deny the appellants- respondents their rights to salary benefits if there are no substantial changes in duties and responsibilities. Where the question is one of statutory interpretation, the determination of an administrative agency is not entitled to deference. Matter of Suffolk Regional Off-Track Betting Corp. v. NYS Racing and Wagering Board, 11 N.Y.3d 559, 567 (2008), citing Matter of Astoria Gas Turbine Power, LLC v. Tax Commn. of City of N.Y., 7 N.Y.3d 451 (2006)(“Deference to administrative agencies charged with enforcing a statute is not required when an issue is one of pure statutory analysis.”) 14 CONCLUSION The portion of the order of the Appellate Division which affirmed the order of Special term holding the retroactive amendment of the reclassification plan to be arbitrary and capricious should be affirmed. The portion of the order of the Appellate Division which reversed the order of Special Term holding that the January 2004 amendments to the Reclassification Plan did not substantially change the duties of Court Officers should be reversed. Dated: Uniondale, N.Y. 11556 December 9, 2013 Respectfully submitted, Law Offices of David Schlachter 626 RXR Plaza Uniondale, N.Y. 11556 (516) 522-2540 Attorney for Appellants-respondents By_____________________________ David Schlachter