In the Matter of New York State Correctional Officers and Police Benevolent Association, Inc., et al., Appellants,v.Governor's Office of Employee Relations, et al., Respondents.

Brief

N.Y.February 9, 2016

To be Argued by: ERIN N. PARKER, ESQ. (Time Requested: 20 Minutes) APL-2015-00111 Appellate Division Case No. 518904 Albany County Clerk’s Index No. 930-13 Court of Appeals of the State of New York In the Matter of the Application of NEW YORK STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC., Donn Rowe, as President; and THOMAS TIERNEY, Petitioners-Appellants, For a Judgment Pursuant to CPLR Article 78 – against – The NEW YORK STATE GOVERNOR’S OFFICE OF EMPLOYEE RELATIONS, GARY JOHNSON, as Director; THE OFFICE OF MENTAL HEALTH, Kristen M. Woodlock, Acting Commissioner; Carol Stevens, in her capacity as the former Executive Director of Hudson River Psychiatric Institute; THE DIVISION OF CLASSIFICATION AND COMPENSATION OF THE NEW YORK DEPARTMENT OF CIVIL SERVICE, Patricia A. Hite, Director, Respondents-Respondents. BRIEF FOR PETITIONERS-APPELLANTS Dated: June 17, 2015 SHEEHAN GREEN GOLDERMAN & JACQUES LLP Erin N. Parker, Esq. Attorneys for Petitioners-Appellants 54 State Street, Suite 1001 Albany, New York 12207 Tel.: (518) 462-0110 Fax: (518) 462-5260 i CORPORATE DISCLOSURE STATEMENT Pursuant to the Court of Appeals Rules, found at 22 NYCRR 500.1(f), Petitioner-Appellant New York State Correctional Officers and Police Benevolent Association, Inc. (“NYSCOPBA”), affirms that it is a corporation formed under Section 402 of the Not-For-Profit Corporation Law of the State of New York. NYSCOPBA has no parents, subsidiaries, or affiliates. ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................ iii PRELIMINARY STATEMENT ...................................................................... 1 QUESTION PRESENTED ............................................................................... 1 NATURE OF THE CASE AND STATEMENT OF FACTS .......................... 2 ARGUMENT NO RATIONAL BASIS EXISTS FOR RESPONDENTS’ DECISION THAT PETITIONER TIERNEY IS NOT WORKING OUT-OF-TITLE ................................................................. 12 A. The law and the standard of review ............................................. 13 B. Petitioner Tierney was performing out-of-title work, as he was directed to perform the duties of Chief Safety and Security Officer, for a significant amount of time, upon the permanent vacancy of his prior supervisor from this position ......................................................................................... 15 C. It is irrational for Respondents GOER and DCC to disregard the determination of Respondent OMH that Petitioner Tierney was performing out-of-title work ................... 24 D. Petitioner Tierney’s designation as “Acting Chief Safety and Security Officer” is well beyond the occasional and infrequent assignments to the position arguably allowable by the Civil Service Classification Standard ........................................................................................ 27 E. Out-of-Title work has been established in law enforcement cases where an officer is assigned as “Officer in Charge” when no supervisor is working .................... 31 F. Respondents DCC and GOER failed to provide a rational basis for rendering two different determinations on almost identical grievances within one day of each other ....................... 34 CONCLUSION ................................................................................................. 38 iii TABLE OF AUTHORITIES Cases: Page Collins v. Governor's Office of Employee Relations, 211 A.D.2d 1001 (3d Dept. 1995) ................................................... 34, 35, 37 Loehr v. Governor's Office of Emple. Rels., 3 A.D.3d 653 (3d Dept. 2004) ................................................................ 27, 28 Matter of Brynien v. Governor's Off. of Empl. Relations, 71 A.D.3d 1275 (3d Dep't 2010) ............................................................ 25, 26 Matter of Caruso v. Mayor of Vil. Of S. Glens Falls, 278 A.D. 2d 608 (3d Dept. 2000) ............................ 14, 29, 30, 31, 32, 33, 34 Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516 (1985) ............................................................................. 35, 37 Matter of Gates Keystone Club v. Roche, 106 A.D2d 877 (4d Dept. 1984) ............................................................. 32, 33 Matter of Kuppinger v. GOER, 203 A.D.2d 664 (3d Dept. 1994) ............................................... 28, 29, 30, 32 Matter of Martin [Troy Publ. Co.--Roberts], 70 N.Y.2d 679 (1987) ............................................................................. 35, 37 Matter of Policemen’s Benevolent Assn. v. Goldin, 266 A.D.2d 294 (2d Dept. 1999) ..................................................... 31, 32, 33 Matter of Rauch vs. Pelligrini, 237 A.D.2d 771 (3d Dept. 1997) ............................................................ 29, 30 Matter of Steen v. GOER, 271 A.D.2d 738 (3d Dept. 2000) ..................................................... 14, 15, 28 Matter of Stuart Sprague v. GOER, 13 A.D. 3d 849 (3d Dept. 2004) .............................. 14, 16, 17, 18, 21, 22, 23 Matter of Wojtylak v. Governor’s Off. of Empl. Relations, 161 A.D.2d 1097 (3d Dept. 1990) ................................................... 17, 21, 22 Matter of Woodward v. Governor’s Off. of Empl. Relations, 279 A.D. 2d 725 (3d Dept. 2001) .................................................... 13, 14, 15 Montauk Improvement v Proccacino, 41 NY2d 913 (1977) ............................................................................... 35 iv Other Authorities: CPLR Article 78 ............................................................................ 1, 2, 12, 35, 37, 38 CPLR § 5601(a) ................................................................................................ 2 CSL § 61(2) ............................................................................................. 2, 13, 14, 29 1 PRELIMINARY STATEMENT This Memorandum of Law is submitted on behalf of Petitioners- Appellants’ Appeal of the Memorandum and Order of the Appellate Division, Third Department dated March 26, 2015 which affirmed the lower courts dismissal the Petition filed pursuant to Article 78 of the Civil Practice Law and Rules seeking to annul the October 16, 2012 Decision of Respondent Governor’s Office of Employee Relations (“GOER”), denying Petitioner Tierneys out-of-title work grievance. Petitioners-Appellants NYSCOPBA and Tierney respectfully request that the Order of the courts below be reversed and that the relief requested in the Petition be granted. QUESTION PRESENTED Did Respondents act in an arbitrary and capricious manner and contrary to law when they denied Petitioners’ out-of-title work grievance? The Supreme Court, Albany County held no and dismissed Petitioners’ petition seeking to review and annul Respondents’ decision because in rendering a determination, GOER found, “petitioner’s current responsibilities are substantially similar to, and/or a reasonable outgrowth of the duties set forth in the job description of a SS2.” (R.10). The Appellate Division, Third Department affirmed the lower court’s decision. (R.138). Two Justices of the Appellate Division, Third Department 2 dissented (Justice Egan and Justice Devine). (R. 142, 144). The dissenting Justices held that the determination of Respondents was irrational based on the circumstances under which Petitioner Tierney assumed the duties of Chief Safety and Security Officer and the fact that Petitioner Tierney’s employer determined he was working out-of-title and sustained the grievance. (R. 144). Petitioners-Appellants ("Petitioners") respectfully submit that the courts below erred in dismissing the Petition as Respondents’ determination is wholly arbitrary and without rational basis. This Court has jurisdiction pursuant to CPLR § 5601(a) due to the dissent of two justices on the question presented to the Appellate Division, Third Department. (R. 136-145). A Notice of Appeal was filed on April 23, 2015, and served on Respondents Counsel. (R. 130-133). NATURE OF THE CASE AND STATEMENT OF FACTS The initial proceeding was commenced pursuant to Article 78 of the Civil Practice Law and Rules by Petitioners, NYSCOPBA and Tierney to review and annul the October 16, 2012 Decision of Respondent GOER issued pursuant to Article 9 of the NYSCOPBA/State Collective Bargaining Agreement (“Contract”), which denied the out-of-title work grievance brought by Petitioners pursuant to Article 9 of the Contract on the ground that GOER’s decision is violative of Civil Service Law § 61(2), Article 9 of the NYSCOPBA/State Contract, and is arbitrary, 3 capricious, and contrary to law. Petitioners-Appellants assert that Respondents determination that Petitioner Tierney was not performing out of title work is irrational. Petitioner NYSCOPBA is the duly certified collective bargaining representative for the Security Services Unit of State employees, which includes various law enforcement titles throughout the state, including the title of Safety and Security Officer 1 and Safety and Security Officer 2, employed by the New York State Office of Mental Health (“OMH”). (R. 18, 96). Petitioner Thomas Tierney is over the age of twenty-one and at all times relevant to this proceeding was employed by OMH, specifically, the Hudson River Psychiatric Center (“Hudson River PC”), as a Safety and Security Officer 2 , which is a title within the competitive class of the Civil Service of the State of New York. Following the closure of Hudson River PC, petitioner Tierney continued to work as a Safety and Security Officer 2 at Rockland Psychiatric Center on the Poughkeepsie Campus. (R.18). Petitioner Tierney’s position is in the Security Services Bargaining Unit, represented by NYSCOPBA. (R. 18). Respondent GOER is an office within the Executive Branch of New York State government, created pursuant to the Executive Law for the purpose of, inter alia, promoting a harmonious and cooperative working relationship between the State and its employees. (R.18). Respondent Division of Classification and 4 Compensation (“DCC”) of the New York State Department of Civil Service is an office created by the Legislature pursuant to the Civil Service Law. (R. 19, 96). Respondent New York State Office of Mental Health (“OMH”) is an agency created pursuant to the Mental Hygiene Law, with the powers and duties conferred by the Mental Hygiene Law and other relevant rules, regulations and statutes. The principal offices of this agency are in Albany, New York. (R. 19, 96). Hudson River PC was a facility operated by the OMH. Hudson River PC was located in Poughkeepsie, New York. The facility was closed on January 26, 2011. Its services were consolidated into Rockland Psychiatric Center. (R. 19). At all times relevant to this proceeding, Carol Stevens, RN, MSN, was the Executive Director of Hudson River PC. Following closure of Hudson River PC, Carol Stevens became the Acting Executive Director of Kingsboro Psychiatric Center. (R. 19). Petitioner Tierney is, and at all times relevant to this proceeding was, employed by OMH, as a Safety and Security Officer 2 (“SSO2”), grade 15. At the times relevant to this proceeding, Petitioner Tierney was a Safety and Security Officer 2 at Hudson River PC. Following the closure of this facility, Petitioner Tierney began working as a Safety and Security Officer 2 at Rockland Psychiatric Center on the Poughkeepsie Campus. (R. 18). 5 According to the Department of Civil Service Classification Standards, the primary duties of a Safety and Security Officer 2, salary grade 15, are to oversee Safety and Security Officers 1 on assigned shift; to provide training and guidance to Safety and Security Officers 1, including training on procedures, scheduling duty assignments, and supervising and instructing in the handling of major incidents. (R. 20, 32-25). The former Chief Safety and Security Officer, salary grade 20, employed at Hudson River PC, left his position as the Chief Safety and Security Officer on or about June 29, 2011 and transferred to Hutchings Psychiatric Center in Syracuse, NY. (R. 20). On or about June 30, 2011, Petitioner Tierney was assigned by Naomi Garrell, Director for Administrative Services (DFAS) to fulfill the duties of the former Chief Safety and Security Officer, who had left Hudson River PC. (R. 21, 59, 70). Following assignment of Petitioner Tierney as Acting Chief Safety and Security Officer, Naomi Garrell, DFAS, informed the individuals in the Safety and Security Department that Petitioner Tierney had been appointed as Acting Chief Safety and Security Officer and would be fulfilling all of the duties of the Chief Safety and Security Officer at Hudson River PC. (R. 21, 70). The primary duties of the Chief Safety and Security Officer are to oversee the overall operations of a safety and security operation, including supervision of all safety personnel; 6 maintenance of safety equipment and records; and development, monitoring and evaluation of policies and procedures. (R. 21, 36-44). Petitioner Tierney’s annual salary as a Safety and Security Officer 2, grade 15 is approximately $71,702.00. The annual salary of a Chief Safety and Security Officer, grade 20, is significantly higher than the salary of a Safety and Security Officer 2 (approximately $91,748.00). (R. 21, 22, 72). Petitioner Tierney was directed to perform all of the duties of the Chief Safety and Security Officer, beginning on or about June 30, 2011. (R.22, 70, 73, 59). This direction came from Naomi Garrell, DFAS, and was conveyed to all of the members of the Safety and Security Department at Hudson River PC. (R. 22, 70). Petitioner Tierney performed all of the typical tasks and assignments listed in the Department of Civil Service Classification Standards for the title of Chief Safety and Security Officer from June 30, 2011 through January 25, 2012. (R. 22). During this time, Petitioner Tierney was referred to as "Acting Chief". (R. 22). This assignment was made during a non-emergency and lasted approximately seven (7) months. (R. 24). On August 8, 2011, an out-of-title grievance was filed by Petitioner Tierney, using the appropriate out-of-title grievance form. (R. 25, 57-58). In his grievance, Petitioner Tierney asserted that he was performing the duties of Chief Safety and Security Officer and requested to be compensated for the difference 7 between his Safety and Security Officer 2 salary (grade 15), and the Chief Safety and Security Officer Salary (grade 20). (R. 25, 57-58). Specifically, Petitioner Tierney listed the following tasks of a Chief Safety and Security Officer, which he was performing, on the out-of-title grievance form: overseeing day to day operations, attending committee and sub-committee meetings, compiling EEOC reports, overseeing vendors (Simplex and ADT), generating reports, TIMR conference calls, monitoring and tracking overtime, and adjusting the duty schedule to minimize overtime usage. (R. 25, 57-58). Following submission of the grievance, no Step 1 answer was completed and the matter proceeded to the next step of the grievance process pursuant to the automatic progression provision of Article 7.2(a)(4) of the parties collective bargaining agreement. (R. 25-26, 77). No Step 1 answer occurred because the Chief Safety and Security Officer customarily holds the Step 1 hearings for grievances filed by security staff. Being that it could appear to be a conflict of interest for Petitioner Tierney to hold a Step 1 hearing on his own grievance, the matter was sent to the next step for review. (R. 77). OMH conducted a second step review of the grievance. (R. 26). By a letter dated December 2, 2011, respondent OMH, rendered a decision in the grievance, finding that Petitioner Tierney performed out-of-title work as Chief Safety and Security Officer beginning June 30, 2011. (R. 26, 59-60). In the 8 decision, Virginia Kirby, Assistant Director, Bureau of Labor Relations, OMH, listed the following tasks that Petitioner Tierney indicated he had been performing: “oversee day to day operations, supervise all day shift officers, schedule assignments, ensure their completeness, monitor and track overtime, attend committee and sub-committee meetings, compile Environment of Care Committee (EOCC) reports, oversee vendors (Simplex and ADT), and generate reports.” The Step 2 decision goes on to specifically state, “Facility Management does not dispute the fact that you are performing the aforementioned tasks. After a thorough review of the record, facts, documentation and discussion with facility management, it is the agency’s determination that the grieved duties are most appropriate to that of a Chief Safety and Security officer, SG-20. Accordingly the grievance is sustained.” (R. 59-60). Although the December 2, 2011 decision states, “Accordingly the grievance is sustained,” the decision indicated that compensation could not be awarded at that level. The decision goes on to indicate that “Only the Director of the Governor’s Office of Employee Relations has the authority to issue monetary awards. As required by Article 9, and by copy of this letter, I am requesting that the Director of Classification and Compensation at the Department of Civil Service affirm this decision and take appropriate action.” (R. 26, 59-60). 9 Michael Marro, Staffing/Grievance Specialist at NYSCOPBA had conversations with Ms. Kirby, regarding receipt of the Step 2 answer, and discussed that the fact that she had sustained the grievance. (R. 78). Mr. Marro specifically discussed her agreement with the fact that Petitioner Tierney, as Acting Chief Safety Officer, had been assigned all of the duties previously performed by the Chief Safety and Security Officer, including those in the classification standard for that title. (R. 78). Because OMH indicated that they did not have the “authority to issue monetary awards,” ultimately, the matter was appealed to Step three of the grievance process. (R. 27). Prior to the formal appeal to Step three of the grievance process, Respondent OMH had sent the step 2 answer, sustaining the grievance, directly to Respondent DCC for review, without the matter being formally appealed by Petitioners NYSCOPBA and/or Tierney. (R.78). In doing so, this bypassed a step of the review process whereby more documentation and/or information could have been provided to Respondent DCC prior their review. (R. 79). By the time the official appeal was filed by NYSCOPBA, whereby Respondent GOER sent the grievance to Respondent DCC for review, Respondent DCC had already received and reviewed the grievance based on the submission directly from Respondent OMH. (R.79). By letter dated October 16, 2012, received 10 by NYSCOPBA October 19, 2012, the Step 3 appeal to Petitioner Tierney’s out- of-title grievance was denied. (R. 27, 61). In the denial, Respondent DCC, and ultimately Respondent GOER, acknowledged that the Step 2 decision (dated December 2, 2011) confirming that Petitioner Tierney was performing duties that were consistent with those of the Chief Safety and Security Officer. (R. 27, 63). Despite the finding of OMH, Respondent DCC recommended, and Respondent GOER held, that the grievance was denied. (R. 27). Despite the request of Virginia Kirby, OMH Assistant Director of Bureau of employee Relations, in her December 2, 2011 Step 2 letter “requesting that the Director of Classification and Compensation at the Department of Civil Service affirm this decision and take appropriate action,” Respondent DCC recommended, and Respondent GOER held, that the grievance was denied. (R. 27-28, 59). At the same time as Petitioner Tierney’s grievance, another NYSCOPBA member, Francine Williams, filed an out-of-title work grievance, pursuant to Article 9 of the parties collective bargaining agreement, alleging that she was working out-of-title, when she, a Safety and Security Officer 2, grade 15, at Broome DDSO, was a designated as Acting Chief Safety and Security Officer, grade 20, and assigned to perform all of the duties of the Acting Chief Safety and Security Officer at Broome DDSO. (R. 80). With respect to Ms. Williams 11 grievance, both the facility (Broome DDSO), and the agency (OPWDD), agreed that Ms. Williams had been designated as the Acting Chief Safety and Security Officer and performed all of the duties of a Chief Safety and Security Officer, for a continuous period, commencing on or about August 29, 2011. (R. 80, 86-87, 88- 89). Unlike, Respondent GOER and Respondent Division of Classification and Compensations’ decision in Petitioner Tierney’s grievance, in Ms. Williams’s grievance, a review was conducted by the Division of Classification and Compensation, and a recommendation was issued to sustain the grievance and pay the compensation owed. This recommendation was adopted by the Governor’s Office of Employee Relations. (R. 81, 90-95). In both Petitioner Tierney’s out-of-title grievance and Ms. Williams out-of-title grievance, the individuals were clearly designated as the Acting Chief Safety and Security Officer, grade 20, at their facility. (R. 81). In both grievances, Petitioner Tierney and Ms. Williams held the title of Safety and Security Officer 2, grade 15, but performed all of the duties of the Chief Safety and Security Officer during the time in which they were designated as the Acting Chief Safety and Security Officer. In both grievances, the facility and the agency, agreed that the grievants (Petitioner Tierney and Ms. Williams) were performing duties most appropriate to the title of Chief safety and Security Officer, and “sustained” the grievances. (R. 81). 12 Despite the similarities between the grievances and despite the findings at the lower steps (and agreement of the at-issue agencies) that Petitioner Tierney and Ms. Williams were performing out-of-title work during the time that they were designated as Acting Chief Safety and Security Officer, Respondent DCC issued different determinations on the grievances. Respondent DCC recommended, and Respondent GOER adopted, a finding sustaining Ms. Williams grievance, but denying Petitioner Tierney’s grievance. (R. 81-82). Upon receipt of Respondent GOER’s Step 3 denial in Petitioner Tierney’s grievance on October 19, 2012, NYSCOPBA timely appealed the decision to arbitration. (R. 28, 67). Following NYSCOPBA’s October 30, 2012 appeal to arbitration, the demand for arbitration was withdrawn, and the matter was submitted for review in the conference phase of the Alternative Dispute Resolution Process only. (R. 28, 68). Based on the language of Article 9 and Article 7 of the parties collective bargaining agreement which do not allow for arbitration for out- of-title grievances, along with the letter configuring this by Acting General Counsel, Michael Volforte of GOER, dated November 20, 2012, the CPLR Article 78 proceeding was commenced. (R. 28, 68). ARGUMENT NO RATIONAL BASIS EXISTS FOR RESPONDENTS’ DECISION THAT PETITIONER TIERNEY WAS NOT WORKING OUT-OF-TITLE. 13 The clear language of Civil Service Law § 61(2) and Article 9 of the Contract prohibits an employee from performing out-of-title work, other than that performed on an emergency basis. Matter of Woodward v. Governor’s Off. of Empl. Relations, 279 A.D. 2d 725, 726 (3d Dept. 2001). In the instant matter, Petitioner Tierney was performing all of the duties of Chief Safety and Security Officer, grade (20), for a period of seven (7) months. (R. 21, 22, 59, 70, 71, 108 (at P. 19)). Despite performing the duties of Chief Safety and Security Officer, which is supported by a determination made by Respondent Office of Mental Health (R.26, 59-60), Respondent GOER determined, based on Respondent Class and Comp’s recommendation, that Petitioner Tierney was not working out-of-title. (R. 27, 61-66). This determination is arbitrary, capricious, and contrary to the language of Civil Service Law §61 (2) and Article 9 of the parties’ collective bargaining agreement. There exists no rational basis for Respondents’ determination; therefore it should not be upheld by this Court. A. The law and the standard of review. Civil Service Law §61 (2) provides: “No person shall be appointed, promoted, or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or 14 reinstated to such position in accordance with the provisions of this chapter and the rules promulgated thereunder.” Civil Service Law §61 (2). Similarly, Article 9 of the collective bargaining agreement between NYSCOPBA and the State mirrors the language of CSL §61 (2) which provides that: “No employee shall under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of the Civil Service Law, Rules and Regulations.” (R. 21-22, 35-36, 94). Courts have consistently held that out-of-title work occurs “when an employee has been assigned… to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for a long periods of time.” Matter of Stuart Sprague v. GOER, 13 A.D. 3d 849, 850 (3d Dept. 2004); Matter of Caruso v. Mayor of Vil. Of S. Glens Falls, 278 A.D. 2d 608, 609 (3d Dept. 2000). In out-of-title work cases, lower courts have considered if the new duties so assigned are appropriate to the petitioners title and/or are a logical outgrowth of those duties. Matter of Woodward, supra, 279 A.D. 2d at 276, citing, Matter of Steen v. GOER, 271 A.D.2d 738 (3d Dept. 2000). The courts have found that an out-of-title grievance will be sustained if the new duties are not appropriate 15 to the title or extend beyond that of a logical outgrowth to the duties. See, Matter of Steen supra; see also, Matter of Woodward, supra. In the instant matter, Petitioners-Appellants argue there simply exists no rational basis for the determination that Petitioner Tierney was not working out- of-title when he was assigned, by his employer, to fill the position of Chief Safety and Security Officer, a vacancy created when the previous Chief Safety and Security Officer transferred to another facility. Although judicial deference is given to agencies acting within the scope of its authority, such deference is not infallible, and if the determination is not rational, it shall not stand. In a circumstance, such as the instant matter, where an employer specifically designates an individual as the “Acting Chief Safety and Security Officer” of a facility, long term and ultimately permanently, following a vacancy created by the individual previously holding the position, it is simply irrational for this not to be considered out-of-title work. B. Petitioner Tierney was performing out-of-title work, as he was directed to perform the duties of Chief Safety and Security Officer, for a significant amount of time, upon the permanent vacancy of his prior supervisor from this position. Petitioner Tierney was working out-of-title, as he was fulfilling a permanent workplace vacancy in the position of Chief Safety and Security Officer for a period of seven (7) months. This specific, ultimately permanent designation, 16 as the “Acting Chief Safety and Security Officer” at Hudson River PC for a period of seven (7) months, due to the vacancy of the prior individual in that title, clearly demonstrates out-of-title work. This is not a circumstance where an individual was acting in the supervisor’s capacity for a short duration, due to a temporary leave, when the supervisor will return and could address some of the “long term duties” that may have gone undone in his absence. This is a case where Petitioner Tierney was specifically designated to act as the Chief Safety and Security Officer due to a permanent transfer, and remained in this position for a long duration, ultimately until the Hudson River PC facility closed. Courts have found out-of-work in circumstances when individuals are directed to perform supervisory duties in the case of workplace vacancies. Matter of Stuart Sprague v. GOER, 13 A.D. 3d 849, 850 (3d Dept. 2004). In Matter of Stuart Sprague, the petitioner was employed by the Department of Transportation (DOT) as a Civil Engineer I, but as a result of the retirement of petitioner’s supervisor, was directed to perform the duties of the supervisor, in the title of Transportation Maintenance Officer II. Id. at 849. The petitioner in Sprague occupied the supervisor position for fifty-six (56) days without a concomitant increase in salary for compensation of performing the duties of the supervisor. Id. The Appellate Division, Third Department held that Sprague was performing out-of-title work and the administrative determination denying his 17 grievance was without a rational basis. The court, in distinguishing from a prior holding in Matter of Wojtylak v. Governor’s Off. of Empl. Relations, 161 A.D.2d 1097 (3d Dept. 1990), held that there is no bright line test for out of title work when it relates to the number of days for filling in for a supervisor. The court held that respondents were required to look at more than merely the number of days that Sprague performed the duties of the supervisor. Sprague, supra at 851. In holding that Sprague had performed out-of-title work, the court distinguished the facts of Sprague from the facts of Wojtylak, supra. The court reasoned that the decision in Wojtylak, which involved a sixty (60) day period, rested on very specific facts, including the fact that the petitioner was filling in for a supervisor who was out on medical leave, and the duties the grievant did perform were a reasonable extension of duties within her title. Id. In Wojtylak, the Appellate Division, Third Department, in denying the out-of-title grievance, found that the petitioners assignment was “unusual and temporary” based on the reason for the assignment – her supervisors absence due to surgery for only 60 days. Matter of Wojtylak, supra at. 1099. Alternatively, in Sprague, the court found that although Sprague’s Civil Engineer I title involved some supervisory duties, a Transportation Maintenance Officer II, has much greater responsibilities, as evidenced by a significantly higher salary. Id. The court noted that the Transportation Maintenance 18 Officer II oversees the entire residency staff, represents DOT in interactions with local officials, establishes quality control programs, hires and evaluates personnel, and performs duties beyond a Civil Engineer I. The court held, “[a]s Sprague was performing these duties, which are not a reasonable extension of duties within his title, and he performed them regularly for an extended period of time, it appears that he was performing out-of-title work and the administrative determination denying his grievance was without a rational basis.” Id. at 851. In the instant matter, Petitioner Tierney, whose title is Safety and Security Officer 2, grade 15, was specifically assigned to perform all of the duties of Chief Safety and Security Officer, grade 20, for an extended period of seven (7) months. (R. 21-24). There is no dispute that Petitioner Tierney was assigned to perform all of the Chief’s duties, as even Respondent OMH admits that he was assigned to act as the Chief upon the vacancy of the prior Chief. (R. 21, 26, 59). Respondent Hudson River PC assigned Petitioner Tierney to these duties, on or about June 30, 2011. (R. 21). Specifically, Naomi Garrell, Director for Administrative Services (DFAS) assigned Petitioner Tierney to fulfill the duties of the former Chief Safety and Security Officer, who had left Hudson River PC. (R. 21). Following assignment of Petitioner Tierney as Acting Chief Safety and Security Officer, Naomi Garrell, DFAS, informed the individuals in the Safety and Security Department that Petitioner Tierney had been appointed as Acting Chief 19 Safety and Security Officer and would be fulfilling all of the duties of the Chief Safety and Security Officer at Hudson River PC. (R. 21). Furthermore, Respondent OMH expressly stated, in sustaining Petitioner Tierney’s grievance at Step 2, that Petitioner Tierney was performing out-of-title work. In the Step 2 decision, Virginia Kirby, Assistant Director, Bureau of Labor Relations, OMH, listed the following tasks that Petitioner Tierney indicated he had been performing: “oversee day to day operations, supervise all day shift officers, schedule assignments, ensure their completeness, monitor and track overtime, attend committee and sub-committee meetings, compile Environment of Care Committee (EOCC) reports, oversee vendors (Simplex and ADT), and generate reports.” The Step 2 decision goes on to specifically state, “Facility Management does not dispute the fact that you are performing the aforementioned tasks. After a thorough review of the record, facts, documentation and discussion with facility management, it is the agency’s determination that the grieved duties are most appropriate to that of a Chief Safety and Security Officer, SG-20. Accordingly the grievance is sustained.” (R. 26, 59). Finally, Respondent OMH specifically indicated in a conversation with Michael Marro, NYSCOPBA staffing grievance specialist (following the Step 2 answer sustaining the grievance) that Petitioner Tierney was in fact the Acting Chief Safety and Security Officer and had been assigned to perform all of the duties previously performed by the Chief 20 Safety and Security Officer, including those in the classification standard for the title. (R. 78). Although as a Safety and Security Officer 2, Petitioner Tierney does have some supervisory duties (supervising Safety and Security Officers 1), when acting and performing all of the duties of Chief Safety and Security Officer, Petitioner Tierney performed significantly more supervisory duties, over the entire safety department. He also performed numerous other duties, all of which are the duties of the Chief Safety and Security Officer and are not simply reasonable extensions of the Safety and Security Officer 2 title. These duties represent a significant expansion on his limited supervisory duties as a Safety and Security Officer 2, where he does at times supervise Safety and Security Officer 1’s. But, as Acting Chief Safety and Security Officer, along with many other expanded duties, he supervised the entire security department. Simply put, Petitioner Tierney’s employer specifically designated him to be the “Acting Chief Safety and Security Officer” upon a permanent vacancy of the prior individual from the position. Such a designation, for a lengthy period of time (7 months), in the face of a permanent supervisory vacancy, is far more than simply filling in while a supervisor is out of work. Regardless of the amount of detail included on the face of Petitioner Tierney’s initial grievance form, this designation, under the circumstances of a permanent workplace vacancy of a 21 supervisory position, for an extended seven month period, must be out-of-title work. This is especially true, when Petitioner Tierney’s employer, the Office of Mental Health, agrees that Petitioner Tierney was working out-of-title, stated so when it sustained the grievance, and only sent the grievance to Respondent DCC to “issue monetary award….and affirm the decision and take appropriate action.” (R.59). The facts in the instant matter mirror the facts in Sprague, where Sprague’s title had some supervisory duties, but while acting as supervisor, he had significantly more supervisory duties and responsibilities, including, overseeing the entire residency staff, representing DOT in interactions with local officials, establishing quality control programs, and hiring and evaluating personnel. Sprague, supra at 851. The court in Sprague held that Sprague had performed the supervisor’s duties, which were not a reasonable extension of his duties, for an extended period of time, therefore, he was performing out-of-title work and the administrative determination was without rational basis. Id. In Matter of Sprague and Matter of Wojtylak, the courts reviewed circumstances of individuals filling in for a period of 56 days and 60 days, while supervisors were absent only for that duration, and rendered two different results, based on the specifics of the duties assigned. In the instant matter, the facts are more compelling to support a finding of out-of-title work, as Petitioner Tierney 22 was acting as the Chief Safety and Security Officer at Hudson River PC for seven months, due to a permanent transfer of the individual in the prior position. This duration, and the circumstances of a permanent transfer of the prior individual holding the position, with no evidence of attempted re-hiring (as noted by the Appellate Division, Third Department, R. 144), are far more extensive than filling in for a supervisor who will ultimately return. Unlike the finding in Wojtylak, the instant facts are not an “unusual and temporary” assignment based on a supervisor’s absence for surgery for 60 days. Reviewing just the duties listed on the face of the grievance form, and not any additional duties outlined in the petition 1 , it is clear that Petitioner Tierney, like the Petitioner in Sprague, had significantly increased his duties by “over seeing day to day operations.” (R. 57). In Sprague, the term used was “overseeing the entire residency staff.” In the instant matter, the term used is “over seeing day to day operations.” (R. 57). Either way, it is clear, that Petitioner Tierney, like the 1 Respondents argue, and the Appellate Division, Third Department agreed that only the information contained in the initial grievance can be reviewed, and no additional details provided in the petition, as the information contained in the initial grievance filing was the information Respondents GOER and DCC reviewed in making its determination. Petitioners-Appellants argue that the information contained in the grievance filing, as well as the circumstances surrounding the appointment of Petitioner Tierney as the “Acting Chief,” including the fact that his employer agreed that he was the Acting Chief and performing the duties listed, evidence out- of-title work in and of itself. This was supported by the dissent in the Appellate Division decision, reviewing only the initial filing and attendant circumstances of the designation to the position. (R. 142). But, it should be noted, as discussed in the affidavit of Michael Marro (R. 75-82), that due to the fact that Respondent OMH sent the step 2 decision directly to Respondent DCC for payment, following sustaining the grievance, instead of waiting for the proper appeal by Petitioner NYSCOPBA, Petitioners were unable to add further documentation of specific duties, which could have been done prior to Respondent DCC’s review. 23 Petitioner in Sprague, had been deemed “in charge” by the employer. In the instant case, this fact – that Petitioner Tierney was in charge, and was in fact the “Acting Chief Safety and Security Officer,” is not disputed by the employer – the Office of Mental Health. (R. 59-60). The Office of Mental Health agreed – like the case in Sprague, that Petitioner Tierney had been filling the role and performing the duties of the Chief Safety and Security Officer position, “overseeing the day to day operations,” when the position was vacated. This is a case of an individual, petitioner Tierney, being assigned to permanently fill a vacancy of his supervisor until the facility closed. This is not temporary assignment where the supervisor will return and address any of the outstanding “big picture” issues that were left unaddressed in his absence. Petitioner Tierney was assigned to be the Acting Chief Safety and Security officer, and perform those duties, without a returning supervisor in that position, until the facility closed. This is not a case of overlapping job duties between the two titles, which allows Petitioner Tierney to perform some of the supervisory duties of the Chief during a temporary absence such as a vacation or an illness, this is a case where Petitioner Tierney was designated to be the Acting Chief until the facilities closure, with no return of any other supervisor. Based on these circumstances, it is irrational to determine that Petitioner Tierney was not working out-of-title. 24 C. It is irrational for Respondents GOER and DCC to disregard the determination of Respondent OMH that Petitioner Tierney was performing out-of-title work. Respondent OMH, in sustaining Petitioner Tierney’s grievance at Step 2, clearly determined that Petitioner Tierney was performing out-of-title work. (R.59). It is irrational for Respondents GOER and DCC to have ignored this determination made “[a]fter thorough review of the record, facts, documentation, and discussion with facility management” (R.59) and instead relied solely on a out of context comparison of a few duties listed on a form compared to job descriptions. Respondent OMH specifically indicated that Petitioner Tierney was working out of title. This determination was based on a review of the record, facts, and most importantly discussion with the facility management. (R. 59). Petitioners- Appellants agree with the dissent in the Appellate Division, Third Department that the facility, and OMH, is in a better position to understand and evaluate the tasks performed by its employees, such as Petitioner Tierney, on a daily basis. (R. 144). Respondent OMH sustained the grievance (R.59). The grievance was only sent further in the process in order to “affirm the decision and take appropriate action” such as issue the “monetary award.” (R. 59). For Respondents GOER and DCC to ignore OMH’s determination, and instead simply compare the duties listed on the form to the duties of the two positions (R. 107, P. 16), and not give weight to 25 Respondent OMH’s determination, is illogical and renders the ultimate determination denying the grievance, irrational. There is an instance in which Respondents GOER and DCC ignored the initial determination of Respondent OMH in finding that out-of-title work occurred, but the specific facts of that determination are inapposite to the issue in the instant matter. In Matter of Brynien v. Governor's Off. of Empl. Relations, the Appellate Division, Third Department did uphold Respondent GOERs determination that twelve different direct care titles were not performing out of title when they were assigned Quality of Care Risk Manager duties. Matter of Brynien v. Governor's Off. of Empl. Relations, 71 A.D.3d 1275 (3d Dep't 2010). In this case, Respondent DCC reviewed whether or not the duties assigned to a number of direct care staff (in many different titles) constituted out of title work because the duties were not included in their specific titles, but instead were investigatory in nature (involving review of patient related incidents) and were given an “in house position” of Quality of Care Risk Manager. Id. Simply put, in this case, Respondent DCC was reviewing whether the 12 individuals were doing duties they should not have been (because they were not listed in their respective civil service classifications), and was not reviewing whether the 12 individuals were performing work specifically outside of their title which is generally assigned to a different civil service title. Ultimately, Respondent DCC, in overturning 26 OMH’s original decision, found the duties to be appropriate to the individuals’ existing titles because quality of patient care is a universal duty of all OMH direct care staff. The particular analysis performed by Respondent DCC in Matter of Brynien, is inapplicable to the instant facts. In Matter of Brynien, the analysis was based on a review of a number of titles and particular extraneous duties assigned to these individuals that purportedly constituted a different “in house” position. Respondent DCC’s expertise in comparing the duties performed by the individuals to the classification standard of the 12 individual titles – and not an “in house” title (which does not have its own civil service classification) is noted. In the instant matter, OMH’s expertise is in the realm of actually knowing what duties Petitioner Tierney performed, by reviewing specific facts and discussing with the facility, prior to determining that Petitioner Tierney was working out of title. The expertise is in the knowledge of what duties were assigned and that he was in fact assigned to be the “Acting Chief Safety and Security Officer” in the absence of a departed supervisor. Furthermore, this determination involved a circumstance of an individual permanently filling in for a departed supervisor, involving an actual civil service classified position, unlike the case in Matter of Brynien involving duties not specifically assigned to any civil service position. The analysis here involves a question of whether or not Petitioner Tierney was performing the duties 27 of his departed supervisor – the individuals who made the assignment and have knowledge of the actual duties performed, clearly have expertise in the factual determination and it is irrational to not give this determination deference over an out of context comparison of a list of duties to a civil service classification. D. Petitioner Tierney’s designation as “Acting Chief Safety and Security Officer” is well beyond the occasional and infrequent assignments to the position arguably allowable by the Civil Service Classification Standard. Respondents argue that Petitioner Tierney’s assignment is allowable because the classification standard for his position, SSO2, provides “may be assigned to direct the department in the absence of the Chief Safety and Security Officer.” (R. 34). This argument must be dismissed, as Petitioner Tierney’s assignment was routine and frequent – in fact permanent for a period of 7 months, and not an occasional and infrequent assignment contemplated by the classification standard. In Loehr v. Governor's Office of Emple. Rels., the Appellate Division, Third Department, addressed a similar argument when Nurse II’s were regularly assigned to the position of Nurse Administrator I. Loehr v. Governor's Office of Emple. Rels., 3 A.D.3d 653 (3d Dept. 2004). In Loehr, the Civil Service Classification specifically noted that Nurse II’s could fill in for a Nurse Administrator I on an occasional basis. In this case, the Nurse II’s would fill in for the Nurse Administrator I in his or her absence, performing some of the tasks of a 28 Nurse Administrator I. The court determined that Respondent GOER had used the wrong standard, the majority of the working time standard, instead of properly addressing whether the Nurse II was filling in for the Nurse Administrator I on an “occasional” or “infrequent” basis. Id. at 655. Ultimately, the court determined that due to the fact that the Civil Service Classification standard contemplated some filling in for the Nurse Administrator I, the appropriate question was whether this occurred on a frequent and routine basis. Id. In the instant matter, Petitioner Tierney was not simply filling in for his supervisor, the Chief Safety and Security Officer when he was absent, he replaced the Chief Safety and Security Officer, upon his permanent departure from the facility, being designated as the “Acting Chief Safety and Security Officer.” Surely, this designation and assignment of the Chief’s duties, upon the departure of the previous Chief is more than an infrequent and occasional assignment. An assignment of this kind is more than the logical outgrowth of limited supervisory role that Petitioner Tierney’s SSO 2 title holds. Furthermore, even assuming Petitioners failed to show that Petitioner Tierney performed all of the Chief Safety and Security Officer duties during his seven month assignment, in an out of title grievance, it is not necessary that employees are assigned to the full range of supervisory duties to be performing out of title work. Matter of Steen, supra at 739, citing, Matter of Kuppinger v. GOER, 29 203 A.D.2d 664 (3d Dept. 1994). Out of title work may be established based on a significant increase in supervisory duties. Matter of Caruso, supra, 278 AD.2d at 609, citing, Matter of Rauch vs. Pelligrini, 237 A.D.2d 771 (3d Dept. 1997); Matter of Kuppinger v. GOER, 203 AD.2d 664, 665 (3d Dept. 1994). In Matter of Kuppinger, the Appellate Division, Third Department found that the Petitioner, a Nurse II, was working out of title when she filled in for the lead supervisor, that of Nurse Administrator I. Matter of Kuppinger v. GOER, 203 A.D.2d 664, 665 (3d Dept. 1994). It was undisputed in the facts that the petitioner, as a Nurse II, was assigned to fill in for an absent Nurse Administrator II. Respondents argued that although Petitioner would perform the supervisory role for that day, she would not perform all of the long range planning, training, and hiring that is a duty of the Nurse Administrator II. Despite Respondent’s argument, the Court found the supervisory work to be out of title. The Court held, Neither Civil Service Law § 61 (2) nor the collective bargaining agreement permits a Nurse II to supervise other Nurse IIs or to supervise all of the nursing personnel throughout seven wards in an entire medical unit on a regular basis, as occurred here. It is obvious that respondents do not provide for substitute Nurse Administrator I personnel but utilize Nurse IIs for such purpose on a regular basis. Id. at 665. Relying on the decision in Matter of Kuppinger, the Appellate Division, Third Department, in Matter of Raush, held that a Food Service Administrator I (FSA I) was working out of title when his supervisory role was vastly expanded as he took 30 over many of the duties of an FSA II. Matter of Rausch, supra, 237 A.D.2d 771, citing Matter of Kuppinger, supra. In Matter of Rausch, the petitioner, an FSA I, had the responsibility of management of food service operations at Greene Correctional Facility for an assigned shift. This Court held that petitioner was working out of title when his limited supervisory duties (of one shift) were vastly expanded, making him responsible for all food service operations of the entire correctional facility. Id. at 772. Taking over the food service operations for all shifts for the entire facility was found to represent a “significant increase in supervisory responsibility.” Id. Petitioner Tierney was working out of title based on a significant increase in supervisory duties, due to a long term, continual assignment to his departed supervisors position – designated as “Acting Chief.” Matter of Caruso, supra, 278 A.D.2d at 609; Matter of Rauch vs. Pelligrini, 237 A.D.2d 771 (3d Dept. 1997); Matter of Kuppinger v. GOER, 203 A.D.2d 664, 665 (3d Dept. 1994). Similar to the facts in Matter of Kuppinger, Petitioner Tierney was assigned to perform the duties of the Chief Safety and Security Officer, his supervisor, when the position became vacant. Petitioner Tierney fulfilled the specific duties of the Chief Safety and Security Officer and acted as the sole supervisor of the entire safety department at the facility. (R. 21-22). This expansion of duties, from a Safety and Security Officer 2’s limited supervisory role over some Safety and 31 Security Officer 1’s, to a supervisory role over the entire safety department, is not a logical outgrowth of Petitioner Tierney’s normal SSO 2 duties. E. Out-of-Title work has been established in law enforcement cases where an officer is assigned as “Officer in Charge” when no supervisor is working. In a series of law enforcement cases, the Appellate Divisions have held that assignment of an officer as “Officer in Charge” or “Senior Officer in Charge,” in the absence of a supervisor is out of title work. Matter of Caruso, supra, 278 A.D.2d at 609; Matter of Policemen’s Benevolent Assn. v. Goldin, 266 A.D.2d 294 (2d Dept. 1999). Similarly, in the instant matter, involving law enforcement tasks within a safety department, Petitioner Tierney was assigned “Acting Chief Safety and Security Officer,” for a period of seven (7) months, in the absence of the individual who formerly held the position. In Matter of Causo, the Appellate Division, Third Department held that the Glens Falls Police Department was assigning police officers out of title work by designating an officer as the “senior officer in charge” in the absence of a sergeant. Matter of Caruso, supra, 278 A.D.2d at 609. In Matter of Caruso, the job description for a police officer stated that an officer is required to work under the supervision of a sergeant (or higher ranking officer) with some independent responsibility and independent judgment. Id. The court held that the assignment of an officer as “senior officer in charge” when a sergeant was not on duty was out of 32 title work because it involved a significant increase in supervisory responsibility. Id. In so holding, the court reasoned, that “in the absence of a Chief, either the force is unsupervised or supervisory decisions must be made by one of the police officers who has not been trained and who is not compensated as a supervisor. Id. at 609. In Matter of Policemen’s Benevolent Assn. v. Goldin, the Appellate Division, Second Department, held that it was out of title work to assign an officer as the “officer in charge” in the absence of a Sergeant. Matter of Policemen’s Benevolent Assn. v. Goldin, supra 266 A.D.2d 294, citing, Matter of Kuppinger, supra. Similarly, the Appellate Division, Fourth Department, has held that assigning an officer to act as “officer in charge” in the absence of a sergeant was out of title work. Matter of Gates Keystone Club v. Roche, 106 A.D2d 877 (4d Dept. 1984). In both of these cases, the assignments as “officer in charge” were scheduled in advance, and were for periods of absence of the supervisory title (sergeant) due to scheduled vacation, personal leave, or other absences from the tour of duty. See, Matter of Policemen’s Benevolent Assn., supra at 294; Matter of Gates Keystone Club, supra at 877. In applying this precedent set in a series of law enforcement cases, Petitioner Tierney, working as the Acting Chief Safety and Security Officer, in the absence of the former Acting Chief Safety and Security Officer is akin to an officer 33 working as the “officer in charge” or “senior officer in charge” in the absence of a sergeant in a police department environment. Matter of Caruso, supra at 609; see also, Matter of Policemen’s Benevolent Assn. v. Goldin, supra at 294, Matter of Gates Keystone Club v. Roche, supra at 877. Petitioner Tierney had a long term assignment as the Acting Chief Safety and Security Officer, upon the permanent transfer of the prior Chief to another facility. (R.20, 21, 70). In the cases cited, out-of-title work was found to have occurred due to even sporadic assignments to the supervisory position, due to vacations and personal leave, and other general leave of absence. In the instant matter, the facts and circumstances of the designation to “Acing Chief” are even more compelling, as Petitioner Tierney was not simply filling in, in the absence of a high level supervisor intermittently or for a short duration, he was specifically designated as the “Acting Chief Safety and Security Officer,” long term, upon the creation of a workplace vacancy in this supervisory law enforcement position due to the permanent departure of the prior individual holding this position. Similar to the specific facts in Matter of Caruso, the Classification Standard for the title of Safety and Security Officer 2 specifically states that a Safety and Security Officer 2 “serve as shift supervisors on an assigned shift under the direction of a Chief Safety and Security Officer” (R. 37), just as the job description for a police officer in Matter of Caruso stated that an officer is required 34 to work under the supervision of a sergeant. Due to the permanent, long term, absence of a Chief Safety and Security Officer at Hudson River PC beginning in June, 2011, Petitioner Tierney, was never working “under the direction of a Chief Safety and Security Officer,” as he had now been designed the Acting Chief Safety and Security Officer and performed those duties. The court in Matter of Caruso held that the assignment of an officer as “senior officer in charge” which included supervisory duties similar to that of a sergeant was out of title work, even though the assignment was a “de facto” assignment to a sergeant and not an actual assignment as a sergeant. Matter of Caruso, 278 A.D.2d at 609. Similarly, to the extent that the Respondents argue that Petitioner Tierney was given a title that doesn’t exist – i.e. “Acting Safety and Security Officer” (R. 107 (footnote), 113 (footnote)), Petitioner Tierney’s assignment as Acting Chief Safety and Security Officer, in the absence of any Chief Safety and Security Officer is out of title work, as it involves a significant increase in supervisory responsibility, as he was assigned to perform the duties if his supervisor, due to the long term, permanent absence, of his previous supervisor who left the position. F. Respondents DCC and GOER failed to provide a rational basis for rendering two different determinations on almost identical grievances within one day of each other. “An agency must adhere to its own precedent when given similar facts or provide an explanation for its departure.” Collins v. Governor's Office of 35 Employee Relations, 211 A.D.2d 1001, 1003 (3d Dept. 1995), citing¸ Matter of Martin [Troy Publ. Co.--Roberts], 70 N.Y.2d 679 (1987); Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516 (1985). In Collins, the Appellate Division, Third Department held that the petitioner was working out-of-title when filling in for an absent supervisor. In Collins, the court relied partially on the fact that Respondent GOER had previously held this same assignment to the supervisor’s duties as out of title work. The court held, “absent an explanation for the departure from the agency's own precedent, such decision will be deemed arbitrary and capricious, mandating annulment.” Collins, supra at 1005. Finally, citing Court of Appeals decisions, the Appellate Division, Third Department held, “a rational explanation must be given at the agency level and cannot, therefore, be provided in response to a CPLR article 78 challenge.” Id. at 1005, citing, Montauk Improvement v Proccacino, 41 NY2d 913 (1977). The instant grievance filed by Petitioner Tierney is also almost identical to the out-of-title grievance filed by another NYSCOPBA member, Ms. Williams, who also held the position of Safety and Security Officer 2, and was designated as Acting Chief Safety and Security Officer and assigned to perform all of the duties of that title for an extended period of time. (R. 80, 84-85). In Ms. Williams case, Respondent DCC held, and Respondent GOER adopted, that Ms. Williams was performing out-of-title work. (R. 81, 80-85). 36 It is simply arbitrary and capricious to have two different determinations on almost identical grievances. In both Petitioner Tierney’s out-of- title grievance and Ms. Williams out-of-title grievance, the individuals were clearly designated as the Acting Chief Safety and Security Officer, grade 20, at their facility. (R. 81). In both grievances, Petitioner Tierney and Ms. Williams held the title of Safety and Security Officer 2, grade 15, but performed all of the duties of the Chief Safety and Security Officer during the time in which they were designated as the Acting Chief Safety and Security Officer. (R. 81). In both grievances, the facility and the agency, agreed that the grievants were performing duties most appropriate to the title of Chief Safety and Security Officer, and “sustained” the grievances. (R. 81). Despite the similarities between the grievances and despite the findings at the lower steps (and agreement of the at-issue agencies) that the Petitioner Tierney and Ms. Williams were performing out-of-title work during the time that they were designated as Acting Chief Safety and Security Officer, Respondent DCC issued different determinations on the grievances. (R. 81). These different determinations were made within one day of one another, with petitioner Tierney’s issued by Respondent DCC and GOER on October 16, 2012 (R. 61-66) and Ms. Williams issued on October 15, 2012 (R. 90-95). Neither of the decisions issued by Respondent DCC and GOER provide any rationale for why 37 the determinations are different, despite the fact that factually these grievances both involved an SSO 2 being assigned as the “Acting Chief Safety and Security Officer” at their respective facility, for an extended duration, in the absences of the individual who previously held the position, a determination agreed to by their respective employing agencies. As noted by the Appellate Division, Third Department, citing Court of Appeals case law, the reasons for a different determination, if any, must be raised at the agency level – i.e. by Respondents DCC and GOER in their determinations, and not for the first time in the CPLR Article 78 proceeding. Collins v. Governor's Office of Employee Relations, supra, citing¸ Matter of Martin [Troy Publ. Co.--Roberts], supra; Matter of Field Delivery Serv. [Roberts], supra. This simply did not occur, therefore Respondent DCC and GOERs determination in this matter is arbitrary and capricious. To the extent Respondents now argue that the two cases are in fact different, justifying different results, Petitioners disagree. The only noticeable difference is the fact that Ms. Williams grievance had an addendum listing the duties she performed as “Acting Chief” in arguably more detail 2 . (R. 84-85). This fact, not properly addressed by Respondent DCC in its determination as a reason 2 As noted in Footnote 1 above, and outlined in the affidavit of Michael Marro, had the proper procedures been followed following the Step 2 decision where OMH sustained the grievance, the union would have appealed the grievance to Step 3, and then it would have been reviewed by Respondent DCC. Instead Respondent OMH, having sustained the grievance, forwarded it directly to Respondent DCC for payment, where it was reviewed, prior to any opportunity by the union (based on its action of an appeal) to add more information and documentation for review by Respondent DCC. for different results, as required (and not first in response to the Article 78 proceeding), does not measurably differentiate the two cases. Ultimately, these two cases are instances of long term, supervisory vacancies, filled by an individual in a lower title, to perform all of the duties of the "Acting Chief' - a designation supported as out of title work by the employing agencies. CONCLUSION Based upon the foregoing, Petitioners-Appellants respectfully submit that the lower courts erred in denying Petitioner's Petition. Accordingly, the Memorandum and Order of the Appellate Division, Third Department should be reversed and the Petition and the relief requested in the Petition be granted. Dated: June 17, 2015 4831-6141-1877, v. 1 Respectfully submitted, SHEEHAN GREENE GOLDERMAN & JACQUES LLP BY:~~~ Erin N. Parker, Esq. Attorneys for Petitioners-Appellants 54 State Street, Suite 1001 Albany, New York 12207 (518) 462-0110 38