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 RESPONDENTS
BARBARA D. UNDERWOOD
Solicitor General
ANDREA OSER
Deputy Solicitor General
LAURA ETLINGER
Assistant Solicitor General
of Counsel
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Respondents
The Capitol
Albany, New York 12224-0341
(518) 776-2028 (telephone)
(518) 915-7724 (facsimile)
Dated: August 19, 2015
Reproduced on Recycled Paper
APL-2015-00111 TO BE ARGUED BY: LAURA ETLINGER
TIME REQUESTED:
15 MINUTES
A.D. NO. 518904/ALBANY COUNTY INDEX NO. 930-13
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ................................................................................ ii
PRELIMINARY STATEMENT ............................................................................1
QUESTION PRESENTED ...................................................................................2
STATEMENT OF THE CASE .............................................................................3
A. Statutory Background .............................................................................3
B. The Relevant Job Titles and Classification Standards .........................4
1. Safety and Security Officer 2 ....................................................6
2. Chief Safety and Security Officer .............................................8
C. The Review and Denial of Tierney’s Grievance .................................. 10
1. The Grievance ......................................................................... 10
2. The Step 2 Review .................................................................. 12
3. The Step 3 Appeal ................................................................... 13
D. This Proceeding and the Decisions Below .......................................... 15
ARGUMENT
POINT I - GOER RATIONALLY DENIED TIERNEY’S OUT-OF-
TITLE WORK GRIEVANCE ...................................................... 19
A. Petitioner Tierney’s Duties Were Appropriate for a
Safety and Security Officer 2 ................................................ 21
B. Tierney Did Not Perform The Distinctive Duties Of A
Chief Safety and Security Officer .......................................... 28
i
TABLE OF CONTENTS (cont’d)
PAGE
POINT II - PETITIONERS WERE NOT DENIED AN
OPPORTUNITY TO DOCUMENT TIERNEY’S
DUTIES ................................................................................. 34
CONCLUSION ................................................................................................... 36
ii
TABLE OF AUTHORITIES
CASES PAGE
Bertoldi, Matter of v. Rosenblatt,
167 A.D.2d 237 (1st Dep’t 1990) .............................................................. 30
Brynien, Matter of v. Governor’s Off. of Empl. Relations,
71 A.D.3d 1275 (3d Dep’t 2010) ............................................................... 21
Caruso, Matter of v. Mayor of Village of S. Glens Falls,
278 A.D.2d 608 (3d Dep’t 2000) ............................................................ 3,32
Civil Serv. Empl. Assn., Matter of v. Angello,
277 A.D.2d 576 (3d Dep’t 2000) ............................................................... 20
Cove v. Sise,
71 N.Y.2d 910 (1988) ............................................................................... 21
Cushing, Matter of v. Governor’s Off. of Empl. Relations,
58 A.D.3d 1095 (3d Dep’t 2009) ................................................ 22,29,30,31
Fitzpatrick, Matter of v. Ruffo,
110 A.D.2d 1032 (3d Dep’t), aff’d for reasons stated at
Appellate Division, 66 N.Y.2d 647 (1985) ..................................................4
Gajewski, Matter of v. Angello,
301 A.D.2d 721 (3d Dep’t 2003) .......................................................... 21,22
Haubert, Matter of v. Governor’s Off. of Empl. Relations,
284 A.D.2d 879 (3d Dep’t 2001) .......................................................... 21,22
Kuppinger, Matter of v. Governor’s Office of Empl. Rel.,
203 A.D.2d 664 (3d Dep’t 1994) ............................................................... 31
New York State Corr. Officers & Police Benevolent Assn., Inc.
v. Governor’s Off. of Empl. Relations,
126 A.D.3d 1267 (3d Dep’t 2015) ............................................................. 17
iii
Table of Authorities (cont’d)
PAGE
CASES
N.Y. State Corr. Officers and Police Benevolent Ass’n, Matter of
v. Governor’s Off. Of Empl. Relations,
105 A.D.3d 1192 (3d Dep’t 2013) ...................................................... passim
Rausch, Matter of v. Pellegrini,
237 A.D.2d 771 (3d Dep’t 1997) .......................................................... 31-32
Scarsdale Assn. of Educ. Secrtaries v. Board of Educ. of Scarsdale
Union Free School Dist.,
53 A.D.3d 572 (2d Dep’t 2008) ....................................................................4
Sprague, Matter of v. Governor’s Office of Empl. Rel.,
13 A.D.3d 849 (3d Dep’t 2004) ................................................................. 31
Wojtylak, Matter of v. Governor’s Off. of Empl. Relations,
161 A.D.2d 1097 (3d Dep’t 1990) ........................................................ 30,31
Woodward, Matter of v. Governor’s Office of Emple. Rels.,
279 A.D.2d 725 (3d Dep’t 2001) .......................................................... 20-21
Yarbough, Matter of v. Franco,
95 N.Y.2d 342 (2000) ............................................................................... 35
STATE STATUTES
Civil Service Law
§ 61(2) ..................................................................................................3
§ 118(1)(a) ..................................................................................................4
§118(2) ............................................................................................... 19
§ 118(2)(a) ........................................................................................... 5, 27
C.P.L.R.
article 78 ..................................................................................................1
§ 5601(a) ............................................................................................... 19
iv
Table of Authorities (cont’d)
PAGE
STATE STATUTES
Executive Law
§ 653 ............................................................................................... 19
§ 654 ............................................................................................... 19
MISCELLANEOUS
OGS Design Procedures Manual, A Guide for Designing Projects for Office
of General Services, Chapter 9.7.16(b) (Revised April 13, 2015), available
at http://www.ogs.ny.gov/BU/DC/DesignProceduresManual.asp
(click on link for Chapter 9.7.16 “Office of Mental Health”) (last
Accessed on August 3, 2015) ........................................................................ 11n
v
PRELIMINARY STATEMENT
Petitioner Thomas Tierney was employed in the supervisory title
of Safety and Security Officer 2 at Hudson River Psychiatric Institute, a
facility operated by the New York State Office of Mental Health. Seven
months before the facility’s scheduled closure, the facility’s Chief Safety
and Security Officer transferred elsewhere and Tierney was assigned to
serve as “Acting Chief.” Tierney filed a grievance claiming that he was
performing out-of-title work. The specific out-of-title work he claimed to
be performing consisted of only a limited number of additional duties,
including supervising just three subordinate Safety and Security
Officers on the day shift; he thus did not claim to be performing any of
the long-range, key managerial and supervisory functions of the
position of Chief Safety and Security Officer. Consequently, after a
careful comparison of the grieved duties with the classification
standards and specifications for both positions, the Governor’s Office of
Employee Relations (“GOER”) determined that Tierney was not
performing out-of-title work and denied his grievance.
Tierney and Donn Rowe, as President of the New York
State Correctional Officers and Police Benevolent Association
(“NYSCOPBA”), Tierney’s union, commenced an article 78 proceeding
challenging GOER’s determination. Supreme Court sustained GOER’s
determination as rational, and the Appellate Division affirmed.
This Court should affirm. There is considerable overlap between
the positions of Safety and Security Officer 2, which is a working
supervisor title, and Chief Safety and Security Officer. Indeed, a Safety
and Security Officer 2 may direct the security department in the
absence of the Chief Safety and Security Officer and may serve as shift
supervisor on an assigned shift or may be responsible for all of the
activities of a security force of less than ten Safety and Security
Officers 1 in a small facility. Because Tierney only performed limited
additional duties as Acting Chief, and did not perform any of the key
managerial and supervisory functions of the higher title, GOER
rationally determined that he was not performing out-of-title work.
QUESTION PRESENTED
Whether GOER rationally determined that the grieved duties
were appropriate to Tierney’s supervisory job title of Safety and
Security Officer 2 because they were directly related to, or an
2
appropriate outgrowth of, the duties listed in the governing
classification standard for this position.
STATEMENT OF THE CASE
A. Statutory Background
Pursuant to Civil Service Law § 61(2) and Article 9 of the
applicable collective bargaining agreement (“the Agreement”),
employees may not be assigned to perform the duties of a position to
which they have not been appointed, except during the continuance of a
temporary emergency. (R46 [Agreement Article 9.1(a)].) The statute
provides that “no person shall be assigned to perform the duties of any
position unless he [or she] has been duly appointed, promoted,
transferred or reinstated to such position in accordance with [the Civil
Service Law] and the rules prescribed thereunder.” Civil Service Law
§ 61(2). “An out-of-title work assignment exists when an employee has
been assigned or compelled to perform the duties of a higher grade,
without a concomitant increase in pay, frequently, recurrently and for
long periods of time.” Matter of Caruso v. Mayor Village of S. Glens
Falls, 278 A.D.2d 608, 609 (3d Dep’t 2000). An employee performing
out-of-title work may file a grievance to enjoin the assignment of the
3
out-of-title duties and to obtain remuneration for the difference in
compensation between the employee’s title and that of the higher-
graded position. (R46-47 [Agreement Article 9.2(a), 9.2(c)(2)].)
However, “[n]ot all additional duties constitute out-of-title work[,]
instead, the question is whether the new duties are appropriate to
petitioner’s title and/or are similar in nature to, or a reasonable
outgrowth of, the duties listed in petitioner’s job specifications.” Matter
of N.Y. State Corr. Officers and Police Benevolent Ass’n v. Governor’s
Off. Of Empl. Relations, 105 A.D.3d 1192, 1194 (3d Dep’t 2013) (internal
quotation and alterations from original omitted); Scarsdale Assn. of
Educ. Secretaries v. Board of Educ. of Scarsdale Union Free School
Dist., 53 A.D.3d 572, 574 (2d Dep’t 2008). Depending on the specific job
specifications, “[d]uties performed by those in one civil service title may
also be exercised by those in another title.” Matter of Fitzpatrick v.
Ruffo, 110 A.D.2d 1032, 1034 (3d Dep’t), aff’d for reasons stated at
Appellate Division, 66 N.Y.2d 647 (1985).
B. The Relevant Job Titles And Classification Standards
Pursuant to Civil Service Law § 118(1)(a), the Division of
Classification and Compensation in the New York State Department of
4
Civil Service (“the Division”), through its Director, classifies all
positions in the classified civil service of the State, and allocates salary
grades to positions in the competitive and non-competitive classes.
Pursuant to Civil Service Law § 118(2)(a), the Division promulgates
classification standards and specifications for civil service job titles
identifying the qualifications for the positions within the job title, as
well as the nature, extent, and scope of the duties and responsibilities of
the positions. As the Division explained through its Chief Classification
and Pay Analyst, classification standards and specifications describe
representative or illustrative duties associated with a job title, but they
are not meant to be all-inclusive. (R105.) They cannot realistically
describe every possible duty or assignment for a particular job title
given the reality of the ever-changing workplace. (R105.) Incumbents
may be required to perform any or all of the specific duties described in
the classification standard or specification for their job title, as well as
other duties and activities that are inherently related to those specific
duties. (R105.)
Additionally, the duties listed in classification standards are not
mutually exclusive. As the Division explained, classification standards
5
for job titles within the same occupational field, such as safety and
security positions in facility settings, often overlap. (R105.) This is
especially true of titles in “career ladders” of successively higher-graded
titles in the same job category, such as the titles of Safety and Security
Officer 2 and Chief Safety and Security Officer at issue here. For these
“career ladder” supervisory titles, the extent, scope and nature of
supervisory and managerial duties often represent the key classification
criteria distinguishing the positions. (R105.)
The Division has promulgated classification standards for the
position of Safety and Security Officer 2, which was held by Tierney
(R32-35), and for the position of Chief Safety and Security Officer (R36-
44), the duties of which Tierney claims he performed.
1. Safety and Security Officer 2
Safety and Security Officer 2 is a working supervisor assigned to a
treatment facility operated by the Office of Mental Health.1 In addition
to performing routine patrol, inspection, and investigation activities,
1 Safety and Security Officers 2 also serve at treatment facilities
operated by the Office for People With Developmental Disabilities and the
Department of Health (R32).
6
Safety and Security Officers 2 are responsible for the direct supervision
of all of the activities of subordinate Safety and Security Officers 1.
(R32, 34.) At larger facilities, these more senior security officers serve
as shift supervisors for a group of Safety and Security Officers 1 under
the direction of the Chief Safety and Security Officer, but at smaller
facilities, they may be fully responsible for supervising a force of less
than ten Safety and Security Officers 1. (R37.)
Safety and Security Officers 2 perform the full range of
supervisory functions for Safety and Security Officers 1: they
participate in recruitment, hiring, and evaluation; schedule and assign
subordinates to specific posts; review subordinates’ reports; provide
training on proper procedures; and provide instruction on the handling
of major security incidents. They also perform a range of functions
related to the development, monitoring and review of the facility’s
environment of care policies and procedures, including scheduling
inspections and drills, reviewing incident reports, and conducting
training sessions for facility staff. Additionally, Safety and Security
Officers 2 attend facility safety committee meetings and are responsible
for preparing a number of required reports. And Safety and Security
7
Officers 2 may be assigned to direct the department in the absence of
the Chief Safety and Security Officer. (R32, 34-35.)
2. Chief Safety and Security Officer
While a Safety and Security Officer 2 is a working supervisor, the
Chief Safety and Security Officer is classified to serve a supervisory and
administrative role and is not expected to perform routine safety and
security functions. The Chief Safety and Security Officer is responsible
for ensuring effective and efficient safety and security operations at a
facility. The duties of this position include supervising all safety
personnel, maintaining safety equipment and records, and developing
policies and procedures. In addition to overseeing the supervisory
activities of the Safety and Security Officers 2, preparing their
performance ratings, and working with subordinate employees to
improve their performance, the Chief Safety and Security Officer serves
as the chief safety administrator for the facility with distinctive policy-
making functions. In that role, the Chief Safety and Security Officer is
responsible for responding to the safety concerns of facility staff,
residents, and visitors; ensuring that security staff is appropriately
trained; conducting and managing site inspections; reviewing the
8
reports prepared by subordinates; developing safety and security
protocols for the facility; and ensuring the enforcement of safety,
security and fire protection laws, rules and regulations. The Chief
Safety and Security Officer also acts as the facility liaison for state and
local police and emergency management personnel, and directs the
enforcement of the New York State Uniform Fire Prevention and
Building Code. Additional managerial functions include development of
the department budget, review and assessment of risks and ongoing
safety programs, development and implementation of the facility’s
Security Management Plan and Program and Fire Safety Management
Program, promulgation of safety regulations and bulletins, and the
development of appropriate parking and traffic regulations. As a
member of the facility’s senior management team, the Chief Safety and
Security Officer consults with the facility’s business officer and deputy
director in handling the most serious safety and security incidents and
also consults with the Office of Mental Health’s state-wide Director of
Mental Health Safety and Environmental Services concerning
department-wide policies. (R36-44.)
9
C. The Review and Denial of Tierney’s Grievance
Petitioner Tierney was employed as a Safety and Security
Officer 2 at the Office of Mental Health’s Hudson River Psychiatric
Center. (R18.) As such, Tierney was represented by petitioner
NYSCOPBA, which is the collective bargaining representative for the
Security Services Unit of state employees. (R18.) According to Tierney,
in June 2011, the employee who served as Chief Safety and Security
Officer left the facility and petitioner was assigned the informal job title
of “Acting Chief” for seven months, until January 2012, when the
Hudson River Psychiatric Center was permanently closed. (R19, 21, 57.)
Acting Chief Safety and Security Officer is not a title in the State Title
and Salary Plan and is not recognized by the Department of Civil
Service’s Division of Classification and Compensation. (R107 n.5.) When
the Hudson River Psychiatric Center closed, Tierney was transferred to
the Rockland Psychiatric Center, where he has served as a Safety and
Security Officer 2. (R18.)
1. The Grievance
Tierney filed a grievance claiming that he was performing out-of-
title work. In the grievance, he claimed that he was responsible for the
10
supervision of officers on the day shift, a staff comprised of only two
Safety and Security Officers 1 and one Safety and Security Officer 1
trainee. Tierney thus scheduled the assignments of these three
employees and ensured the completion of their work. (R57.) Tierney
additionally claimed that he was responsible for “overseeing day to day
operations, attending committee and sub-committee meetings,
compil[ing] EOCC reports,2 overseeing vendors (Simplex and ADT),
generating reports, TIMR conference calls,3 monitor[ing] and track[ing]
overtime, and adjust[ing the] Duty Schedule to minimize [overtime]
usage.” (R57.) Tierney did not claim that he supervised the entire
security staff of the facility, conducted performance reviews of any
Safety and Security Officers 2, developed safety protocols, managed
safety inspections, promulgated safety regulations, assessed and
2 EOCC stands for Environment of Care Committee. (See R63.)
3 TIMR conference calls are conference calls relating to “testing,
inspection, maintenance, and repair/ replacement” contracts with safety and
security vendors. See OGS Design Procedures Manual, A Guide for Designing
Projects for Design and Construction, Chapter 9.7.16(b) (Revised April 13,
2015), available at http://www.ogs.ny.gov/BU/DC/DesignProceduresManual.asp
[click on link for Chapter 9.7.16 “Office of Mental Health”] (last accessed
August 3, 2015).
11
identified ongoing risks, developed the department budget, or developed
and evaluated safety and security policies, all duties of a Chief Safety
and Security Officer.
2. The Step 2 Review
Petitioner Tierney’s grievance was not reviewed at the facility
level, but proceeded directly to Step 2 review by the Office of Mental
Health agency designee. (Cf. R50 [Agreement Article 7.2(a) (providing
for Step 1 review of grievances by the facility head and an appeal to
Step 2 for review by the agency head)].) Without reviewing whether the
grieved duties were appropriate to the tasks and standards for the
position of Safety and Security Officer 2, the agency issued a decision
noting that facility management did not dispute that petitioner was
engaging in the grieved duties. Thus, although the agency contended it
had engaged in “a thorough review of the records, facts, documentation
and discussion with facility management,” it found only that Tierney
was performing the duties listed on his grievance. On this basis, the
agency sustained the grievance and determined that petitioner was
entitled to a monetary award. (R59.)
12
Under the applicable Agreement, the next step should have been
to await an appeal by Tierney or the union to the Director of GOER for
a Step 3 review, and for GOER then to seek a recommendation from the
Division of Classification and Compensation. (R46 [Agreement Article
9.2].) Instead, upon sustaining the grievance and concluding that it
could not authorize payment, the Office of Mental Health transmitted
the grievance directly to the Division for appropriate action. (R59.)
3. The Step 3 Appeal
When NYSCOPBA thereafter appealed the grievance to Step 3,
the grievance was properly re-routed to the Director of GOER for
review. (R46, 51, 83.) Under the Agreement, petitioner NYSCOPBA had
an opportunity at this juncture to present the Division with “a written
brief of the facts surrounding the grievance” (R46), but did not do so.
Instead, it simply forwarded petitioner’s original grievance form and
requested Step 3 review. (R83.)
By that time, the Division had issued its recommendation on the
basis of the papers forwarded to it by the Office of Mental Health (R46.)
In doing so, the Division undertook a careful comparison of the duties
performed by Tierney that were alleged to be out-of-title and the
13
classification standards for the position of Safety and Security Officer 2.
(R115-116). It concluded that the grieved duties were consistent with
those classification standards and thus that Tierney had not been
performing out-of-title work. (R115-116.) In reaching this conclusion,
the Division noted that the specific duties Tierney stated he was
performing—supervision of officers on the day shift, including
scheduling their assignments, and monitoring and tracking their
overtime, as well as attending meetings and completing reports—were
all entirely consistent with the duties of a properly classified Safety and
Security Officer 2. (R116.) Moreover, the Division found no evidence in
the grievance record that Tierney performed the key administrative
functions of a Chief Safety and Security Officer, such as supervising
security staff of all levels, engaging in staff assessment and
performance development, performing ongoing analysis of events and
incidents, developing and monitoring protocols and policies, and
directing the enforcement of the Uniform Fire Prevention and Building
Code at the facility. (R116.) The Division noted that these key duties
served to distinguish a properly classified Chief Safety and Security
Officer from a Safety and Security Officer 2. (R116.)
14
The Director of GOER thereafter adopted the findings of the
Division of Classification and Compensation and denied the appeal.
(R46-47 [Agreement Article 9.2(c), R62-66.)
D. This Proceeding and the Decisions Below
In the underlying article 78 proceeding, Tierney and NYSCOPBA
seek an order declaring GOER’s determination arbitrary and
capricious and contrary to law, and remanding Tierney’s grievance for
redetermination and an award of back pay. (R17-31.) In support of the
petition, they submitted out-of-title grievance records of a Safety and
Security Officer 2 employed by the Office of People With Developmental
Disabilities (“OPWDD”) who had been designated to serve as an Acting
Chief Safety and Security Officer for the Broome Developmental
Disability Services Organization. The grievance of this officer had been
sustained by GOER on the basis of the out-of-title duties she described,
including the supervision of a 28-person staff around the clock. (R80-82,
84-95.)
Additionally, in the petition and in his accompanying affidavit,
Tierney alleged for the first time that he had performed a significantly
expanded list of administrative and supervisory duties during the
15
relevant time period. (R22-24, 71-72.) The list of expanded duties he
now claimed to have performed was not included in his grievance or in
any other document submitted to respondents during their
administrative review.
The State respondents filed an answer supported by the affidavit
of George Velesko, Chief Classification and Pay Analyst of the Division
of Classification and Compensation. (R96-101, 102-113.) In his affidavit,
Velesko described the background of the grievances, provided a detailed
description of the Division’s review of the grievance appeal and the
record before the agency, and explained why the record did not
substantiate Tierney’s grievance. (R108-110, 112.) Velesko also
explained the difference between Tierney’s situation and that of the
Acting Chief Safety and Security Officer at the Broome Developmental
Disability Services Organization. In that case, the grievance record
included a detailed list of high-level administrative and managerial
duties performed by the employee that were consistent with the Chief
Safety and Security Officer title, including extensive report preparation,
overseeing the daily operation of 28 safety and security officers serving
on three shifts, and overseeing building fire and safety inspections for
16
the primary treatment facility as well as 49 community sites. (R111,
112-113.)
Supreme Court, Albany County (McGrath, J.), dismissed the
petition. (R6-10.) The court found that the functions detailed in
Tierney’s grievance were either listed in or directly derived from the
Safety and Security Officer 2 classification standard. (R10.) Based on its
review of the record, the court concluded that GOER’s determination
was not affected by error of law or irrational. (R8-10.)
A majority of the Appellate Division affirmed, with two justices
dissenting. Matter of New York State Corr. Officers & Police Benevolent
Assn., Inc. v Governor's Off. of Empl. Relations, 126 A.D.3d 1267
(3d Dep’t 2015) (reproduced at R136-145). Both the majority and the
dissent recognized that the Court’s review was limited to whether the
record before GOER provided a rational basis for its determination and,
accordingly, confined its review to the list of tasks Tierney set forth in
his grievance. (R139, 143 n.1.) The majority also noted that some of the
duties listed on Tierney’s grievance form were consistent with the
duties listed on the classification standards for either Safety and
Security Officer 2 or Chief Safety and Security Officer, as both are
17
supervisory positions. These included attending committee meetings,
preparing reports, and supervising subordinates. (R140.) Because
Tierney’s grievance indicated that he only supervised three Safety and
Security Officers 1 (one of whom was a trainee), that the subordinate
officers he supervised all worked on the same day shift, and that he did
not engage in the distinctive managerial duties of a Chief Safety and
Security Officer, the majority concluded that GOER rationally found
that the duties Tierney performed, “in the absence of his supervisor,
either fell within the duties of [a Safety and Security Officer 2] or were
a reasonable and logical outgrowth of those duties.” (R141.)
The majority also readily distinguished the grievance of the other
Safety and Security Officer 2 that had been upheld and on which
Tierney had relied. That grievance made clear that the employee had
engaged in many more of the duties of a Chief Safety and Security
Officer. (R141.) Finally, the majority observed that the Court should
defer to the legal conclusions reached by GOER and the Division of
Classification and Compensation, as those are the entities that are
statutorily responsible for determining the classification and
18
specifications of civil service titles. (R141 [citing Civil Service Law
§ 118(2); Executive Law §§ 653, 654].)
The dissent would have granted the petition on the basis of two
factors. First, the dissent found it highly relevant that Tierney had been
designated to serve as “Acting Chief” upon the transfer of the former
Chief Safety and Security Officer to another facility. (R142-143.)
Second, the dissent reasoned that GOER acted irrationally in basing its
decision on an examination of the applicable classification standards for
the two positions rather than the reasoned conclusion reached by the
Office of Mental Health following “discussions with facility personnel.”
(R144.)
Petitioners appealed as of right. See C.P.L.R. § 5601(a).
ARGUMENT
POINT I
GOER RATIONALLY DENIED TIERNEY’S OUT-OF-
TITLE WORK GRIEVANCE
GOER’s determination that petitioner Tierney was not performing
out-of-title work was rationally based upon the Division of
Classification and Compensation’s careful comparison of the duties
19
Tierney alleged to be performing with the applicable classification
standards. As GOER properly determined, those duties were
appropriate for Tierney’s position as a Safety and Security Officer 2, a
position that required him to supervise subordinate officers. Moreover,
Tierney did not perform the key managerial and supervisory functions
of a Chief Safety and Security Officer. Thus, both the Appellate Division
majority and Supreme Court correctly concluded that the
administrative determination should not be disturbed, and this Court
should affirm.
Judicial review of administrative determinations with respect to
out-of-title work grievances is limited. The courts are “ever mindful of
the policy . . . to defer to an administrative agency on issues within
their expertise, reviewing them only on limited grounds.” Matter of Civil
Serv. Empl. Assn. v. Angello, 277 A.D.2d 576, 578 (3d Dep’t 2000).
Accordingly, the “limited standard of review” applicable here is
“whether the record as a whole provides a rational basis for the
underlying determination, which will not be disturbed absent a showing
that it is wholly arbitrary or without any rational basis.” Matter of
Woodward v. Governor’s Office of Emple. Rels., 279 A.D.2d 725, 726-27
20
(3d Dep’t 2001) (internal quotation and citation omitted); accord Matter
of Brynien v. Governor’s Off. of Empl. Relations, 71 A.D.3d 1275, 1277
(3d Dep’t 2010); Matter of Gajewski v. Angello, 301 A.D.2d 721, 722
(3d Dep’t 2003). See generally Cove v. Sise, 71 N.Y.2d 910, 912 (1988)
(“Administrative determinations concerning position classifications are
of course subject to only limited judicial review, and will not be
disturbed in the absence of a showing that they are wholly arbitrary or
without any rational basis.”).
A. Petitioner Tierney’s Duties Were Appropriate for a
Safety and Security Officer 2
As the Appellate Division majority recognized, “[a]n employee is
not necessarily performing out-of-title work by fulfilling some
overlapping functions of an absent supervisor, if those functions are
substantially similar to duties listed in the classification standard for
the employee’s title.” (R138.) The relevant inquiry is “whether the new
duties are appropriate to petitioner[‘s] title[] and/or are similar in
nature to, or a reasonable outgrowth of, the duties listed in petitioner[‘s]
job specification[].” Matter of Haubert v. Governor's Office of Emple.
Rels., 284 A.D.2d 879, 880 (3d Dep’t 2001). If they are, the performance
21
of the duties does not constitute out-of-title work. See Matter of Cushing
v. Governor’s Off. of Empl. Relations, 58 A.D.3d 1095, 1096 (3d Dep’t
2009); Matter of Gajewski, 301 A.D.2d at 722; Matter of Haubert, 284
A.D.2d at 880. The key factors are “the similarities between the duties
assigned and those customarily performed by the employee, the extent
to which the employee exercised the full range of duties of the higher
level position, and whether the duties actually performed could be
characterized as a reasonable extension of the employee’s in-title
duties.” Matter of Cushing, 58 A.D.3d at 1096. The statute thus has
been applied in a way that recognizes that the employer agency should
have some flexibility to address the practicalities of individual
employment situations. See Matter of N.Y. State Corr. Officers & Police
Benevolent Ass’n, 105 A.D.3d at 1193-94.
Tierney claims that he was assigned the additional functions
listed in his grievance upon the transfer of the Chief Safety and
Security Officer to another facility, and that he performed these
additional functions for the following seven months until the Hudson
River Psychiatric Center was permanently closed. (R18, 22, 57.) Even
assuming that Tierney took on additional responsibilities upon the
22
transfer of the facility’s Chief Safety and Security Officer, GOER
rationally determined that Tierney was not performing out-of-title work
because the specific duties he took on were appropriate to his title of
Safety and Security Officer 2. The relevant inquiry is not whether
Tierney was asked to perform additional functions in the absence of a
former supervisor, but whether the duties he was assigned were
appropriate to his position.
Here, as Supreme Court and the Appellate Division majority
concluded, GOER rationally found that the grieved duties were either
duties specifically listed in the classification standard for the position of
Safety and Security Officer 2, or they were a natural outgrowth of the
duties in that job specification. In his grievance, Tierney alleged that he
was performing out-of-title duties because he was “overseeing day to
day operations” and supervising three Safety and Security Officers 1,
including monitoring and tracking their overtime and adjusting the
assignment schedule to minimize overtime usage. These supervisory
functions fit comfortably in the classification standard and
specifications for the title of Safety and Security Officer 2 because that
position is a working supervisor responsible for the direct supervision of
23
all of the activities of subordinate Safety and Security Officers 1. (R32.)
Indeed, a Safety and Security Officer 2 may participate in recruitment,
hiring, and evaluation; schedule and assign subordinates to specific
posts; review subordinates’ reports; provide training on proper
procedures; and provide instruction on the handling of major security
incidents. (R34.) Supervising subordinate security staff is thus a
common feature of the titles of Safety and Security Officer 2 and Chief
Safety and Security Officer. (R32, 34, 37-39.)
Indeed, in distinguishing the related title of Safety and Security
Officer 2, the classification standard for Chief Safety and Security
Officer notes that Safety and Security Officers 2 may either serve as
shift supervisors under the direction of a Chief Safety and Security
Officer or they may be responsible for all of the activities of a force of
less than ten Safety and Security Officers 1. (R37.) Thus, larger
facilities may be staffed by several Safety and Security Officers 2, each
of whom serves as shift supervisor and reports to the Chief Safety and
Security Officer, while smaller facilities may be staffed by just one
Safety and Security Officer 2 who oversees the entire security force.
Here, Tierney’s grievance specified that he was supervising two Safety
24
and Security Officers 1 and one Safety and Security Officer 1 trainee,
all three of whom worked on the day shift. Directly supervising the “day
to day operations” of this small force of Safety and Security Officers 1
was entirely consistent with the standards for Tierney’s assigned title.
The additional administrative duties that petitioner claimed to
have been assigned are also consistent with the classification standard
for Safety and Security Officer 2. Tierney pointed to the fact that he was
assigned to attend committee and sub-committee meetings, compile
Environment of Care Committee reports, and generate other reports.
(R57.) But these duties are appropriate for a Safety and Security Officer
2. The specifications for this title provide that an employee may be
required to attend safety committee meetings and may be responsible
for preparing a number of required reports, including competency
assessments, performance appraisals, and statistical and narrative
reports. (R34-35.) Generating other reports and attending additional
meetings is “a reasonable outgrowth of . . . the duties listed in
petitioner’s job specifications.” Matter of N.Y. State Corr. Officers and
Police Benevolent Ass’n, 105 A.D.3d at 1194.
25
Likewise, although the standard and specifications for Safety and
Security Officer 2 do not specifically include overseeing safety and
security vendors and participating in TIMR conference calls—the
additional duties listed in Tierney’s grievance—these duties all involve
safety and security functions at the facility and follow logically from the
supervisory and administrative functions specified for a Safety and
Security Officer 2. Consequently, as GOER rationally concluded, all of
the additional duties Tierney presented in his grievance were
appropriate to the title of Safety and Security Officer 2.
Contrary to the reasoning of the dissent below and petitioners’
argument to this Court (Br. at 24-27), there was no basis for GOER to
defer to the Office of Mental Health’s Step 2 determination in this case.
The Appellate Division dissent found it significant that in finding
Tierney’s grieved duties were “most appropriate to that of a Chief
Safety and Security Officer,” the Office of Mental Health stated it was
relying on “a thorough review of the record, facts, documentation and
discussion with facility management.” (R143; see 59.) But there is no
reason to think that the Office of Mental Health was relying on
anything other than the duties Tierney listed in his grievance. In fact,
26
the Office of Mental Health Step 2 determination recites precisely the
duties alleged by Tierney in his grievance, and then uses those duties to
reach its determination. (R59.) And the Division of Classification and
Compensation and GOER then considered these very same duties when
they concluded that Tierney was not performing out-of-title work.
(Compare R59 with R64-65.) Thus, the Office of Mental Health and
GOER simply reached a different legal conclusion based on the same
facts. And, as the Appellate Division majority aptly noted (R141), as
between the out-of-title determinations of the employer and those of
GOER, deference is due to GOER’s determination. After all, it is
GOER’s determination that is based on the recommendation of the
Division of Classification and Compensation, which is the office
specifically charged with responsibility for promulgating the
classification standards and specifications for civil service job titles. See
Civil Service Law § 118(2)(a). The Division of Classification and
Compensation thus has administrative expertise in analyzing which
duties are appropriate to a specific title, and the parties’ collective
bargaining agreement appropriately recognizes that GOER should
follow the recommendation of the agency with administrative expertise.
27
(See R47 [Agreement Article 9.2(c)].) It was thus entirely rational for
GOER to adopt the finding of the Division of Compensation and
Classification in this case.
B. Tierney Did Not Perform The Distinctive Duties
Of A Chief Safety and Security Officer
Moreover, as GOER appropriately found, there was no evidence in
the administrative record that Tierney performed the distinctive
managerial functions of a Chief Safety and Security Officer, such as
overseeing the supervision activities of Safety and Security Officers 2,
preparing their performance ratings, and working with subordinate
employees to improve their performance; developing policies and
procedures and security protocols; managing site inspections; ensuring
the enforcement of safety, security and fire protection laws; developing
the department budget; and working with state and local emergency
management teams. (See R36-44, 57.) GOER’s determination that
petitioner was not performing the key distinctive duties of the Chief
SSO position is thus rationally based in the administrative record.
Contrary to petitioners’ argument (Br. at 15, 20-22) and the
reasoning of the Appellate Division dissent, this analysis is not altered
by the fact that Tierney was designated as Acting Chief for the seven-
28
month period before the facility was permanently closed. Indeed, the
records suggests that the facility simply determined that it could
function without a Chief Safety and Security Officer for that short
period. While the facility was winding down, any key managerial
functions required during that time period could be performed by other
executive level staff. The determinative factor is not whether Tierney’s
supervisor was absent, but whether the duties Tierney claimed to be
performing as Acting Chief were appropriate to his title of Safety and
Security Officer 2. And as we have demonstrated, GOER rationally
determined that they were.
Indeed, when supervisory employees have in similar situations
performed some additional duties for absent supervisors, but have not
performed the full range of key managerial functions, the courts have
upheld determinations finding that the employees were not performing
out-of-title work. For example, in Matter of Cushing, 58 A.D.3d at 1096-
97, the Third Department upheld GOER’s determination that an
employee holding the title of Nurse 2 could perform some of the
overlapping functions of her supervisor, a Nurse Administrator 1, when
the supervisor was not on duty. As here, the employee’s classification
29
standard in Cushing itself included numerous supervisory duties and
there were many similarities between the classification standards of the
two positions.
The facts of this case are also similar to those presented in Matter
of Wojtylak v. Governor’s Off. of Empl. Relations, 161 A.D.2d 1097
(3d Dep’t 1990). The employee in that case held the position of
supervising dietician and claimed that she was denied the higher
compensation rate for a discrete period in which she performed some of
the duties of her supervisor, an institution food administrator, while the
supervisor recovered from surgery. Id. at 1098. The Court upheld as
rational GOER’s determination that the employee was not performing
out-of-title work, where GOER had relied on the legitimate reason for
the short-term assignment, the similarity of the specifications for the
two positions, and, as here, the fact that the employee did not perform
the full range of her supervisor’s duties such as budget development
and other policy-making functions. Id. at 1099; see also Matter of
Bertoldi v. Rosenblatt, 167 A.D.2d 237, 238 (1st Dep’t 1990) (court
clerks assigned additional duties previously performed by more senior
court clerks did not perform out-of-title work where they did not
30
perform supervisory functions and key complex duties of higher
position). Here, as in Cushing and Wojtylak, there was a legitimate
reason for the assignment of additional duties and, most importantly,
such duties relate directly to the supervisory and administrative
functions of a properly assigned Safety and Security Officer 2.
These same factors serve to distinguish Tierney’s situation from
that presented in Matter of Kuppinger v. Governor’s Office of Empl. Rel.,
203 A.D.2d 664 (3d Dep’t 1994), and Matter of Sprague v. Governor’s
Office of Empl. Rel., 13 A.D.3d 849 (3d Dep’t 2004), upon which
petitioners heavily rely (Br. at 16-18, 21-22, 29-30). Key to the Court’s
decision in Kuppinger was the fact that the employee, a Nurse 2, was
responsible for supervisory duties outside her title, including
supervising both other Nurse 2s as well as all of the nursing personnel
throughout seven wards of an entire medical unit. 203 A.D.2d at 665.
Similarly, in Sprague, the employer found that the employee was
performing “the typical activities and tasks” of the higher graded
position when the former supervisor retired and the court concluded
that these activities were not reasonably related to the employee’s
current title. 13 A.D.3d 849, 851; see also Matter of Rausch v. Pellegrini,
31
237 A.D.2d 771, 772 (3d Dep’t 1997) (grievant performed the “full gamut
of food service operations on all shifts . . . [with] a significant increase
in supervisory responsibility”) (cited in Brief at 29-30). The law
enforcement cases petitioners cite (Br. at 31-34) are likewise
distinguishable. Unlike Tierney, the officers in those cases did not hold
titles that included supervisory duties; thus, their assignment as
“officer in charge” (or like position) involved the performance of out-of-
title work. See Matter of N.Y. State Corr. Officers and Police Benevolent
Ass’n, 105 A.D.3d at 1197 n.3 (distinguishing Matter of Caruso v. Mayor
of Vil. of S. Glens Falls, 278 A.D.2d 608 (3d Dep’t 2000), on this basis).
Finally, there is no merit to petitioners’ argument (Br. at 34-38)
that GOER failed to adhere to its precedent. Petitioners rely on GOER’s
determination sustaining the grievance of a Safety and Security
Officer 2, employed by OPWDD, who claimed she was performing out-
of-title work when she was assigned to serve as Acting Chief Safety and
Security Officer for the Broome Developmental Disability Services
Organization. As the courts below found, the fact that Tierney
supervised a small force of only three subordinate officers and did not
perform key managerial duties serves to distinguish his situation. In
32
contrast to Tierney’s situation, the OPWDD Safety and Security Officer
2 in that case was assigned to oversee the daily activities of a large
safety and security operation consisting of 28 subordinate security
officers at multiple locations. (R85, 119.) She also performed key
managerial and policy functions of the Chief Safety and Security Officer
title, such as overseeing the department budget, reviewing and
updating safety department policies and procedures, and scheduling
and approving safety inspections at both the main facility and at 49
community sites. (R85, 119.) That employee’s grievance was thus
sustained by GOER because, unlike Tierney’s situation, her additional
duties went well beyond the scope of her Safety and Security Officer 2
title. (See R123-127.)
In sum, the record in this case provides a rational basis for
GOER’s determination that petitioner Tierney was not performing out-
of-title work because the additional duties he was assigned were
entirely consistent with the supervisory functions of a properly
employed Safety and Security Officer 2. For this reason, the Court
should affirm the Appellate Division judgment affirming dismissal of
the petition.
33
POINT II
PETITIONERS WERE NOT DENIED AN OPPORTUNITY
TO DOCUMENT TIERNEY’S DUTIES
There is no merit to petitioners’ claim (Br. at 22 n.1, 37 n.2) that
NYSCOPBA was prevented during the administrative review process
from providing additional information about the specific duties that
Tierney performed. The applicable bargaining agreement expressly
gave NYSCOPBA “the opportunity to present to the Director of
Classification and Compensation, a written brief of the facts
surrounding the grievance.” (R46 [Agreement Article 9.2(b)].) See
Matter of N.Y. State Corr. Officers & Police Benevolent Ass’n, 105
A.D.3d at 1195 (noting that NYSCOPBA could have submitted
additional facts on administrative appeal pursuant to the terms of the
collective bargaining agreement).
To be sure, the Office of Mental Health initially sent its Step 2
grievance determination directly to the Division of Classification and
Compensation for appropriate action, and the Division issued a
recommendation before the union submitted a request to appeal. (R59,
115-116.) But that did not prevent NYSCOPBA from presenting a
written brief with information about any additional duties Tierney may
34
have performed once it submitted its appeal. GOER could have asked
the Division to revisit its recommendation upon receipt of any such
information, and we are advised it would have done so. Instead of
presenting any additional information, however, NYSCOPBA sent only
a letter indicating it was appealing the Step 2 determination without
any additional information. (R83.) As both the majority and dissent at
the Appellate Division concluded, review of GOER’s determination is
thus limited to the evidence that was before the administrative agency.
See Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347 (2000) (“Judicial
review of administrative determinations is confined to the facts and
record adduced before the agency.”). If the Court disagrees, however,
and finds NYSCOPBA was prevented from submitting additional
information, the property remedy would be to remit the matter to
GOER for reconsideration of its determination based on the additional
information provided.
For all of these reasons, the Appellate Division properly affirmed
Supreme Court’s order dismissing the petition.
35
CONCLUSION
Judgment affirming dismissal of the petition should be affirmed.
Dated: Albany, New York
August 19, 2015
BARBARA D. UNDERWOOD
Solicitor General
ANDREA OSER
Deputy Solicitor General
LAURA ETLINGER
Assistant Solicitor General
of Counsel
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Respondents
By: ____________________________
LAURA ETLINGER
Assistant Solicitor General
The Capitol
Albany, NY 12224
(518) 776-2028 (telephone)
(518) 915-7724 (facsimile)
Reproduced on Recycled Paper
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