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. 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 Date Completed: September 10, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 4 POINT I THE DETERMINATION THAT THERE WAS A SUBSTANTIAL CHANGE IN DUTIES AND RESPONSIBILITIES FROM THE COURT OFFICER POSITION TO TI-lE NEW YORK STATE COURT OFFICER POSITION WAS ARBITRARY AND CAPRICIOUS ............................................ 8 POINT II THE CHALLENGE TO THE DETERMINATION THAT THERE WAS A SUBSTANTIAL CHANGE IN DUTIES AND RESPONSIBILITIES FROM THE COURT OFFICER POSITION TO THE NEW YORK STATE COURT OFFICER POSITION WAS TIMELy ....................................... 13 CONCLUSION ....................................................................................................... 18 TABLE OF AUTHORITIES Page(s) Cases: Association o.fSecretaries to Justices of the Supreme and Surrogate's Cts. In the City of New York v. Office of Ct. Admin., 75 N.Y.2d 460 (1990) ................................................................................... 10 C'hase v. Board (~f Education qf the Roxbury ("entral SchoollJistrict, 188 A .. O.2d 192 (3d Oep't 1993) ............................................................. 13-14 ("ivil Service Employees Association, Inc., Local 810 v. Clinton County Department of Public Health, 169 A.O.2d 970 (3d Oep't 1991) .................................................................... 8 Gavigan v. McCoy, 37 N.Y.2d 548 (1975) ..................................................................................... 8 King v. City o.fNewburgh, 84 A.O.2d 388 (2d Oep't 1982) .................................................................... 14 Matter qf Bellacosa v. ("lass~fication Review Bd. o.fthe Unlfied Ct. Sys. Of the State o.f NY, 72 N.Y.2d 383 (1983) ................................................................................... 10 lAAatter of'C.S.E.A. v. ("ounty o.fDutchess, 6 A.O.3d 1070 (3d Oep't 2008) .................................................................... 16 Matter qf("alnperiengo v. State Liq. Auth., 16 A.O.2d 342 (1st Oep't 1962) ................................................................... 13 Matter (~f Lower Eastside Service Center, Inc. v. New York State Division qfSubstance Abuse Services, 156 Misc. 2d 72 (Sup. Ct. New York County 1992) .................................... 14 Matter of Quantuln Health Resources v. DeBuono, 273 A.O.2d 730 (3d Oep't 2000) .................................................................. 17 McKillop v. Lippman, 9 Misc. 3d 635 (Sup. Ct. New York County 2005) ...................................... 16 11 Statutes & Other Authorities: Civil Service Law § II8(1)(c) ................................................................................. 15 Judiciary Law § 1. (d) ................................................................................................ 15 Judiciary l.la\\l § 3(c) .................................................................................................. 6 Judiciary Law § 37(5) ............................................................................................ 1,6 Judiciary Law § 3 7( 11 ) .......................................................................................... 1, 6 111 PRELIMINARY STATEMENT The Chief Administrative Judge, the respondent-appellant herein, issued a new Classification Plan for the court security title series effective January 8, 2004. (R-30) Among other changes, the Classification Plan reclassified the position of Court Officer (JG-16) to New York State Court Officer (JG-17). (R- 30) The respondent-appellant implemented the plan as a reclassification with a substantial change in duties within the meaning of Judiciary Law Section 3 7( 11) and calculated salaries pursuant to Judiciary Law Section 37(5). (R-97) On December 22, 2004 the respondent-appellant issued an administrative order amending the Plan retroactive to January 8, 2004, by reclassifying the position of Court Officer from JG-16 to New York State Court Officer (JG-18). (R-33) The amendment was implemented on April 6, 2005 retroactive to January 8, 2004, as a reclassification with a substantial change of duties within the meaning of Judiciary Law Section 3 7( 11) and calculated salaries pursuant to Judiciary Law Section 37 (5). (R-97) In their petition, the appellants-respondents set forth two separate claims. (R-189) The first claim is that the respondent-appellant acted arbitrarily and capriciously when she treated the change of the Court Officer title to New York State Court Officer as a reclassification with a substantial change in job duties and responsibilities rather than a reallocation or a reclassification with no 1 substantial change in job duties. The Supreme Court (Whalen, J.) compared the title standards and found that there was no rational basis for the determination that there was substantial change in duties. (R-16) The Supreme Court rejected the respondent-appellant's defense that the proceeding was time barred, holding that the subsequent order "appears to have been a fresh, complete and unlimited examination into the merits (citations omitted)." (R-17) The Appellate Division, Second Department, reversed the lower court, holding that the appellants-respondents' claim for continuous service credit was time barred ["Contrary to the petitioners' contention, 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)]. (R-200- 202) Appellants-respondents moved in the Appellate Division for permission to appeal to the Court of Appeals, and the Appellate Division granted permission to appeal. (R-197-199) The appellants-respondents' second claim is that the respondent- appellant acted arbitrarily and capriciously when she changed the Court Officer title from JO-17 to JO-18 retroactive to the January 2004 order. The Supreme Court held that making the reallocation retroactive was arbitrary and capricious. (R-19-21) On appeal, the Appellate Division affirmed the decision of the Supreme Court on this claim. (R-200-202) The respondent-appellant moved in the 2 Appellate Division for permission to appeal to the Court of Appeals, and the Appellate Division granted that motion. (R-197 -199) Pursuant to the direction of the Court, this issue will be addressed first by the respondent-appellant, and the appellants-respondents will address the issue in their reply brief. 3 STATEMENT OF FACTS The appellant-respondent Suffolk County Court Employees Association, Inc. is the certified representative of non-judicial employees employed by the respondent-appellant in Suffolk County, including New York State Court Officers (hereafter referred to as NYS Court Officers"). (R-51) The individual named appellants-respondents were employed by the respondent- appellant in Suffolk County as Court Officers (JO-16) prior to January 8, 2004 and were thereafter employed as NYS Court Officers. (R-51) This proceeding was brought by the appellants-respondents on behalf of themselves and similarly situated NYS Court Officers employed by the respondent-appellant in Suffolk County. (R-184) Effective January 8, 2004 the respondent-appellant amended the Classification Plan with respect to the court security title series. (R-30) Among other changes, the Classification Plan provided that Court Officers (J 0-16) with two or more years of service became NYS Court Officers (JO-17). The title standards in existence prior to the change in the classification plan and the title standards created by the amendment to the classification plan are annexed to the Affidavit of LawrenceK. Marks, sworn to on June 8, 2009. (R-I00, 158) The respondent-appellant implemented the Plan by changing salaries on April 7, 2004. (R-169) The respondent-appellant calculated the salaries of the NYS Court 4 Officers (JG-17) as though there had been a substantial change in duties from those of the Court Officer (JG-16). (R-97) The only explanations offered by the respondent-appellant for finding that there had been a substantial change in duties is that the NYS Court Officers could be assigned to higher courts where jury trials were more likely and cases drew more public attention. Affidavit of Lawrence K. Marks, sworn to on June 8, 2009, par. 12 (R-91) These reasons were rejected by the Supreme Court. (R-16) By Administrative Order dated December 22, 2004, the respondent- appellant amended the Classification Plan, retroactive to January 8, 2004, to change the grade of New York State Court Officer from JG-17 to JG-18. (R-33) The order does not recite the basis for her decision and the respondent-appellant has submitted no affidavits or other documents that address that issue. The respondent-appellant implemented the amended order on March 23, 2005 as if the reclassification effective January 8, 2004 significantly changed the job duties of the NYS Court Officers (J G-18) from the duties they had performed as Court Officers (JG-16). (R-97) The Supreme Court (Whalen,J) found that "[ w ]hile the affidavit from Lawrence K. Marks, the Administrative Director for the Unified Court System, 5 fails to offer a reason for the retroactive change of the position of New York State Court Officer from JG-17 to JG-18," the Reply Memorandum, p 8, states: After initially allocating the NYS Court Officer title to the J G-l 7 salary grade, the Chief Administrative Judge 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. When a position is reclassified to a new title or salary grade based upon a substantial change in the duties of the position, salaries are recalculated pursuant to Judiciary Law Sec. 37(5). Judiciary Law Sec. 3(c) provides that when a position is reclassified to a title in a higher salary grade with no substantial change in duties from the former title, the employee receives credit for time worked in the lower title for purposes of additional increments. Judiciary Law Sec 37 (11) sets forth the procedure for the calculation of salaries when the positions are reallocated or when the positions are reclassified and there is no substantial change in duties. By treating the new titles as a reclassification with a substantial change in duties and responsibilities, the respondent-appellant deprived the appellants-respondents of significant salary increases to which they would have been entitled if the respondent-appellant had recognized the new titles as a reallocation or as a reclassification with no substantial change in duties and 6 responsibilities. Affidavit of Lawrence K Marks, sworn to on June 8, 2009, fn. 9. (R-99); Affidavit of Anthony Cetta, sworn to on March 19, 2009. (R-69) 7 POINT I THE DETERMINATION THAT THERE WAS A SUBSTANTIAL CHANGE IN DUTIES AND RESPONSIBILITIES FROM THE COURT OFFICER POSITION TO THE NEW YORK STATE COURT OFFICER POSITION WAS ARBITRARY AND CAPRICIOUS When the respondent-appellant modified the Classification Plan by administrative order dated January 8, 2004, she determined that there was no substantial difference in duties and responsibilities between the previously existing Court Officer (JG-16) position and the newly created NYS Court Officer (JG-17) position. When the respondent-appellant modified the Classification Plan by administrative order dated December 22, 2004, retroactive to January 8, 2004, she determined that there were no substantial differences in duties and responsibilities between the previously existing Court Officer position (JG-16) and the newly created New York State Court Officer position (JG-18). Two titles are not substantially similar to each other where one title performs duties that the other does not. Civil Service Employees Association, Inc., Local 810 v. Clinton County Department of Public Health, 169 A.D.2d 970, 972 (3 rd Dept. 1991) The title specifications determine what duties are properly performed within a given title standard. Gavigan v. McCoy, 37 N.Y.2d 548 (1975) A comparison of the title standards for the position of Court Officer (JG-16) with the title standards for the position of NYS Court Officer (JG-17) shows that the 8 distinguishing features of work, the typical duties and the required knowledge, skills and abilities are substantially the same. The Supreme Court (Whalen, J.) "undertook a detailed review of the titles in question" and found that "the prior Court Officer title and the new NYS Court Officer title are engaged in basically the same work, with equivalent levels of responsibilities, and that any differences between the titles were insignificant." The Court provided the following analysis (R-15): An examination of the prior title (see Ex. A, aff. Of Lawrence K Marks, dated June 8, 2009), discloses 13 "Typical Duties," all of which have been incorporated, verbatim, into the new title, NYS Court Officer (see Ex. I, aff. Of Lawrence K. Marks, dated June 8, 2009). While the new title has 19 "Typical Duties," the six extra duties listed amount to little more than the rewording of the existing duties. For instance, the first extra duty listed, that is the third, "Assumes a post or patrols the courthouse to maintain order by removing or calming disruptive individuals ... ," is simply a restatement of the first duty listed, "Provides security by standing in the courtroom and patrolling the courthouse," and what was the prior third listed and now the fourth, "Physically restrains unruly individuals." The extra duty listed of "Escorts, guards, and delivers materials to sequestered juries," was certainly encompassed in the preexisting duties of "Escorts judges, juries, witnesses and prisoners to and from the courtroom," "displays and safeguards exhibits in the courtroom," and "Distributes and posts appropriate documents and court materials." The prior duty listed of "Provides assistance in emergency situations," coupled with the prior requirement of "knowledge of first-aid," is simply restated under the new duty of "Administers first aid and assistance to individuals during emergencies, accidents or illnesses." Finally, the prior duties of "Checks to ensure that all necessary documents are available prior to court sessions" and "Distributes and 9 posts appropriate documents and court materials " encompasses the new listed duty of "Checks bench to ensure that the Judge has adequate supplies, proper forms, and other materials." The only reason offered by the respondent-appellant in support of the claim that the reclassification was based upon substantial changes in duties and responsibilities is set forth in paragraph 13 of the affidavit of Lawrence K. Marks. (R-92) The affidavit argues that prior to reclassification, the JG-16 title provided security in the courts of limited jurisdiction and that the abolished Senior Court Officer title provided security in the Supreme, County, and Surrogate's Courts, which "held many more jury trials than the limited jurisdiction courts .... " Respondent-appellant's argument that prior title specifications for Court Officer were court specific was rejected by the Supreme Court (Whalen, J.) based upon prior cases: with regard to Court Clerk titles (Association of Secretaries to Justices of the Supreme and Surrogate's Cts. In the City of New York v. Office of Ct. Adnzin., 75 N.Y.2d 460 [1990]) and Secretary to Judge and Senior Secretary to Judge titles based upon the size of the county-level court in which they worked (Matter of Bellacosa v. Classification Review Bd. Of the Unified Ct. Sys. Of the State of NY, 72 N.Y.2d 383 [1983]) [" ... the duties and responsibilities set forth in the two job titles under consideration were virtually identical"]. (R-16). The argument that there were more trials in the higher courts similarly fails to establish there was a substantial change in duties. The Court below found 10 that escorting, protecting and assisting jurors was a task under the Court Officer title standard and did not constitute a "substantial change in duties and responsibilities. " Respondent-appellant also argues that unlike the JG-16 title, the new title is regularly involved with cases and proceedings more likely to draw public attention. There is nothing in the record to support this claim, and public attention afforded a case is not included within the title standards. The Supreme Court (Whalen, 1.) also noted 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." (R-16) Respondent-appellant notes that a decision in favor of the appellants- respondents would have statewide budgetary implications, potentially costing $5.4 million more than the cost of reclassification. (R-99) However, the respondent- appellant does not argue or even suggest cost as a reason for its determination. Consequently, it is irrelevant and prejudicial to suggest that the cost is relevant to reviewing its administrative action. Moreover, the respondent-appellant overstates the costs by adding all of the other NYS Court Officers to the small number of appellants-respondents. As the Supreme Court (Whalen, J.) stated: "Article 78 determinations apply prospectively to 'subsequent petitioners ' (citations omitted) with timely causes of 11 action (citation omitted). The commencement of this proceeding did not toll the statute of limitations for similarly situated individuals and does not revive dead cases and apply retroactively (citation omitted)." (R-18) 12 POINT II THE CHALLENGE TO THE DETERMINATION THAT THERE WAS A SUBSTANTIAL CHANGE IN DUTIES AND RESPONSIBILITIES FROM THE COURT OFFICER POSITION TO THE NEW YORK STATE COURT OFFICER POSITION WAS TIMELY The respondent-appellant amended the Classification Plan with respect to the court security title series effective January 8, 2004. Affidavit of Lawrence K Marks, sworn to on June 8, 2009, par. 7 (R-88). As part of the Plan, the title of Court Officer (JG-16) was reclassified to New York State Court Officer (JG-17) Salaries were adjusted on the April 7, 2004 payroll, and the newly reclassified New York State Court Officers (JG-17) received salaries that reflected a substantial change in duties. On December 22, 2004 the respondent-appellant amended the Classification Plan retroactive to January 8, 2004, changing the grade of the NYS Court Officer position from JG-17 to JG-18. The amended classification plan was implemented on March 23, 2005, when the first salary adjustments were made, and this proceeding was commenced within four months thereafter. The question presented is whether the four month statute of limitations was renewed by the December 22,2004 order. Where agency reconsideration of a matter "appears to have been a fresh, complete and unlimited examination into the merits" (Matter of Camperiengo v. State Liq. Auth., 16 AD2d 342, 347 [1 st Dept., 1962]), the statutory period within which to commence a review proceeding is renewed. Chase 13 v. Board of Education of the Roxbury Central School District, 188 A.D.2d 192,197 (3d Dept. 1993)("We are of the view that the reopening of the SEQRA review process constituted a fresh and complete examination into the environmental significance of both the school building and bus garage projects and, therefore, the statutory period within which plaintiffs could challenge any declaration resulting therefrom is renewed."); Matter of Lower Eastside Service Center, Inc. v. New York State Division of Substance Abuse Services, 156 Misc.2d 72, 77 (Sup. Ct. New York County 1992)(" ... what DSAS did is not merely eliminate a penalty or abate interest, as was done on reconsideration in Corbisiero, but rather it modified on the merits the determination set forth in its [ earlier] audit. ... "); King v. City of Newburgh, 84 A.D.2d 388, 399 (2d Dept. 1982). Prior to amending the Classification Plan on December 22, 2004 (retroactive to January 8, 2004), the respondent-appellant conducted what appears to be a fresh, complete and unlimited examination into the evaluation of the duties of the reclassified position of New York State Court Officers in order to conclude that the duties were more appropriately allocated to JG-18 and that the duties were substantially different than the duties of the prior position of Court Officer(JG-16). In determining that there was no substantial change in duties between the Court officer (JG-16) and New York State Court Officer position, the respondent-appellant necessarily compared the duties of the Court Officer position 14 and the duties of the NYS Court Officer position. In determining retroactively that the duties of the NYS Court Officer were more similar to the prior Senior Court Officer (JG-1S) title than to the prior Court Officer (JG-16) title, the respondent- appellant necessarily compared the duties of the New York State Court Officer (JG-17) with the duties of both the prior Court Officer (JG-16) and prior Senior Court Officer positions. The record indicates that after review, "the Chief Administrative Judge determined that the JG-1S salary grade was more appropriate, because the NYS Court Officer title is roughly comparable to the former Senior Court Officer title." (R-14, 17) Such a review is implicitly required by Judiciary Law Section 1 (d), which requires that personnel practices be consistent with Civil Service Law, and CSL Sec. 11S( 1)( c) provides that" [t]he principle of fair and equal pay for similar work shall be followed in the classification and reclassification and the allocation and reallocation of positions pursuant to the article .... " The respondent-appellant could only have met her statutory obligations by making the "fresh, complete and unlimited examination into the merits" that would entitle appellants-respondents to a renewal of its time to challenge the initial determination. An investigation must be made before a reclassification or reallocation of a civil service position. Matter ofC.S.E.A. v. County of Dutchess, 6 A.D.3d 1070 (3d Dept. 200S). 15 Moreover, the respondent-appellant waived the statute of limitations defense. In 2005 a union representing New York State court employees in another jurisdiction brought a proceeding challenging the January 8, 2004 Classification Plan. The respondent-appellant successfully argued in that proceeding that the petition should be dismissed as premature because of respondent-appellant' s claim that the then Chief Administrative Judge was still in the process of rolling out the components of the Classification Plan and it was therefore too early to be able to determine if there is no substantial change in the duties or responsibilities of the affected titles. McKillop v. Lippman, 9 Misc. 3d 635 (Sup. Ct. New York County 2005) The Supreme Court (Whalen, J) found that" [s]uch reconsideration, on December 22, 2004, granted as a matter of discretion does 'constitute the sort of fresh, complete and unlimited examination into the merits' as would suffice to revive the Statute of Limitations. (citations omitted)" (R-17) The appellants- respondents did not request a new determination. The respondent-appellant made her own review, which was not limited in scope by any rule or procedure or by any action by the appellants-respondents. Based upon the foregoing, it IS respectfully submitted that the respondent-appellant has failed to establish that the appellants-respondents' challenge to the determination that the duties and responsibilities of the NYS 16 Court Officer position are substantially different than the duties and responsibilities of the Court Officer position is untimely. Matter of Quantum Health Resources v. DeBuono, 273 A.D.2d 730, 732 (3d Dept. 2000). 17 CONCLUSION The determination that there was no substantial change in duties from the position of Court Officer (JG-16) to the position of New York State Court Officer is arbitrary and capricious and without rational basis. The challenge to that determination is timely. That portion of the Order of the Appellate Division which held a portion of the proceeding untimely should be reversed, and the Order of the Supreme Court (Whalen, J) should be reinstated, and the appellants-respondents should be awarded costs and disbursements. Dated: September 10, 2013 Uniondale, N.Y.11556 Law Offices of David Schlachter 626 RXR Plaza Uniondale, N.Y. 11556 (516) f,5~-2540 By 18 A The Appellate Experts 460 WEST 34TH STREET, NEW YORK, NEW YORK 10001 (212) 685-9800; (716) 852-9800; (800) 4-APPEAL www.counselpress.com (249396)