Decided August 19, 2005.
In this Article 78 proceeding, petitioner David H. Adler, New York State Court Officer Sergeant ("Sgt. Adler") seeks a judgment (1) directing respondent The Office of Court Administration of the Unified Court System of the State of New York ("OCA") to set aside the "noncompetitive" classification of the title New York State Court Officer Lieutenant ("Lieutenant") as arbitrary and contrary to law; (2) vacating all OCA Lieutenant appointments; and (3) enjoining OCA from making any further Lieutenant appointments.
OCA opposes this petition and cross-moves for its dismissal based on expiration of the statue of limitations, laches, failure to exhaust administrative remedies, absence of a necessary party, and lack of merit.
For the past thirty-two years, Sgt. Adler has worked as an officer for OCA. Affirmation in Support of Petition ("Aff."), at ¶ 3. For twenty-seven of those years, he has held the title of Sergeant. Id.
Prior to January 8, 2004, court security titles were classified into two parallel command lines "Court Officer" and "Senior Court Officer." Respondent's Affirmation in Opposition ("Opp."), at ¶ 3. Although both lines contained several levels of command, neither carried a title called "Lieutenant." Id. Nonetheless, several OCA court officers were employed in a position called "in-house Lieutenant," an unofficial position equivalent in title standards and pay to the Sergeant position. Aff., at ¶ 6.
On August 11, 2003, in an effort to clarify the status of the in-house Lieutenant position, Deputy Administrative Judge Ann Pfau ("Judge Pfau") wrote a memo in which she stated, "Be aware that in the event we adopt a new classification structure for the security series, and a new Lieutenant title is included, no then-current officers holding the in-house designation of Lieutenant will be given the new title. Rather, those positions would be filled through the structured interview process used for noncompetitive titles." Aff., Ex. B, at 1.
On January 8, 2004, OCA combined the two command lines to form a unified command line and created an official "Lieutenant" classification, which it deemed "noncompetitive." Opp., at ¶¶ 5-7. Pursuant to its noncompetitive classification, candidates for Lieutenant were to be chosen by interview, not examination. Opp., at ¶ 8.
On February 13, 2004, OCA announced Employment Opportunity No. 1402 (hereinafter "1402"), which sought applicants for the position of Lieutenant. Aff., at ¶ 4. The announcement provided that applicants were required to submit applications and written statements demonstrating their skills in organization and planning, problem solving, decisiveness, and supervision. Opp., at ¶ 8. OCA then redacted the applicants' identifying information from their applications and submitted them to a five-member panel for review. Opp., at ¶ 9. Of the 673 candidates who applied, 486 were deemed eligible for further consideration based on the panel's review. Opp., at ¶ 10. These 486 candidates were then interviewed by local panels, who made recommendations for appointment through a consensus process. Id. The Deputy Chief Administrative Judge of each jurisdiction approved each panel's final selections. Id.
On July 29, 2004 and August 12, 2004, OCA appointed 156 officers to the Lieutenant position. Opp., at ¶ 11. Sgt. Adler applied, but was not chosen. Aff., at ¶ 5.
Sgt. Adler now moves for a judgment directing OCA to reclassify the Lieutenant position as competitive, vacate all current Lieutenant appointments, and stop making any further Lieutenant appointments. Aff., at ¶ 9. He argues that Judge Pfau's unilateral determination that the Lieutenant position would be noncompetitive violated Judiciary Law § 211(1)(d), which provides that, "Statewide standards and policies concerning personnel practices relating to nonjudicial personnel shall be consistent with the civil service law, and shall be promulgated after a public hearing * * *." Aff., at ¶ 7.
Furthermore, Sgt. Adler claims that the noncompetitive classification of the Lieutenant position is unlawful because it violates Civil Service Law § 42, which provides that, "the non-competitive class shall include all positions * * * for which it is found by the commission having jurisdiction to be not practicable to ascertain the merit and fitness of applicants by competitive examination." Aff., at ¶ 11.
Additionally, he points out that 22 N.Y.C.R.R. 25.9 permits a noncompetitive classification only when it is not practicable to ascertain the merit and fitness of the candidates through examination. Id. He explains that the Lieutenant position is the second-lowest position an officer can hold, and therefore, a Lieutenant does not have authority to make management or policy decision such that the position must be filled by personal interview instead of by examination. Aff., at ¶ 12.
Finally, Sgt. Adler argues that OCA's appointment of the Lieutenants through the noncompetitive hiring process was arbitrary and intended to permit the unrestricted appointment of those officers who already held the "in-house Lieutenant" position. Aff., at ¶ 14. Indeed, he alleges that ninety-eight out of the one hundred officers who held the position of "in-house Lieutenant" at the time of application were appointed to the Lieutenant position. Aff., at ¶ 19.
In response to Sgt. Adler's allegations, OCA cross-moves for dismissal of the petition. OCA argues that under CPLR 217, Sgt. Adler's petition is time-barred by the applicable four-month statute of limitations because he brought the petition on November 22, 2004, almost a year after January 8, 2004 the date that Judge Pfau created the official noncompetitive Lieutenant classification. Opp., at ¶ 12. In support of this claim, OCA submits a letter dated January 8, 2004, which provides that, "the new title [of Lieutenant] will be filled through the structured interview process used for non-competitive titles." Opp., Ex. B, at 3.
OCA also urges that Sgt. Adler's petition must be dismissed because he is guilty of laches. Opp., at ¶ 13. It points out that since formally announcing the Lieutenant classification in January of 2004, it has appointed over 150 officers to that designation, and if Sgt. Adler's petition were granted at this late date, it would harm those individuals. Id.
Additionally, OCA moves for dismissal of the petition for failure to exhaust administrative remedies. Section 25 of the Rules of the Chief Judge provides that any nonjudicial employee who wants review of a classification must do so in writing by submitting a request to OCA's director of personnel. 22 N.Y.C.R.R. 25.5. OCA argues that because Sgt. Adler never petitioned OCA to change the noncompetitive classification of Lieutenant, he cannot now appeal that classification to this Court. OCA's Memorandum of Law in Opposition ("Memo"), at 5.
OCA further alleges that dismissal of the petition is warranted because Sgt. Adler failed to join all necessary parties to the action. Opp., at ¶ 16. OCA claims that because Sgt. Adler's petition, if granted, would displace all presently appointed Lieutenants from their positions, he was required to join them as parties to his petition. Memo, at 14. OCA contends that even if Sgt. Adler were unaware of who specifically was named to the Lieutenant position, he was necessarily required to join the representing unions of court officers, namely, the New York State Supreme Court Officers Association (New York City) ("Manhattan Union"), the New York State Court Officers Association (New York City) ("State Union"), the Civil Service Employees Association ("Civil Service Union"), Local 1000 (Upstate) ("Upstate Union"), the Court Officers Benevolent Association of Nassau County ("Nassau Union"), and the Suffolk County Court Employees Association, Inc. ("Suffolk Union"). Opp., ¶ 19.
Finally, OCA contends that Judge Pfau was not required to hold a hearing before adopting the Lieutenant title because changes to title standards are not "standards and administrative policies" as contemplated by Judiciary Law § 211. OCA's Reply Memorandum, at 4. Furthermore, it argues that 22 N.Y.C.R.R. 80.1(b)(16) specifically empowers the Chief Administrative Judge to "adopt classifications and allocate positions for nonjudicial officers and employees of the unified court system." Reply Memorandum, at 4.
Statute of Limitations
A proceeding against a body or officer pursuant to Article 78 must be commenced within four months from the date an agency's decision becomes final and binding. CPLR 217. To determine the date from which the statute of limitations runs, the court must first determine what administrative decision is actually being presented for review, then establish at what time that decision became final and binding. Matter of Green Harbour Homeowners' Assn., Inc. v. Town of Lake George Planning Bd., 1 AD3d 744, 745 (3rd Dept. 2003).
"If an agency has created ambiguity or uncertainty as to whether a final and binding decision has been issued, the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court." Carter v. State of New York, 95 NY2d 267, 270 (2000) ( citing Mundy v. Nassau County Civ. Serv. Commn., 44 NY2d 352, 358); see also, Montalvo v. Crotty, 137 AD2d 437, 437-38 (1st Dept. 1988). The burden is on the administrative agency to demonstrate the existence of a final and binding determination. Turner v. Bethlehem Cent. School Dist., 265 AD2d 640, 641 (3rd Dept. 1999).
Furthermore, the statutory period does not begin to run until the aggrieved party is notified of the final and binding determination and that determination has an impact on the aggrieved party. Edmead v. McGuire, 67 NY2d 714, 716 (1986); see also, Cahill v. New York State Div. of State Police, 304 AD2d 971, 972 (3rd Dept. 2003).
Here, there is some question as to what administrative decision Sgt. Adler is appealing. OCA claims that Sgt. Adler is appealing its determination that the "Lieutenant" title is noncompetitive, and thus, the statute of limitations began to run from the time it announced the position would be noncompetitive on January 8, 2004 or when it announced Employment Opportunity 1402 on February 13, 2004. Memo, at 8. Therefore, OCA claims that Sgt. Adler's petition filed November 22, 2004, more than four months later is untimely. Memo, at 9.
Sgt. Adler, however, claims that he is not only appealing OCA's determination that the Lieutenant position would be noncompetitive, but also its decision to appoint officers with no sergeant experience to lieutenant, a decision that did not become final and binding until August 2004. Reply, at 14-15. Sgt. Adler further argues that the statute of limitations did not begin to run until August 2004 when he, the aggrieved party, was harmed by not receiving an appointment as a Lieutenant. Reply, at 4. He alleges, moreover, that it was not until September 22, 2004 the date OCA posted a subsequent employment announcement ("24405") that he first had notice that he did not receive the appointment and was no longer eligible for appointment under 1402. Reply, at 7.
Because there is some question as to when Sgt. Adler became effected by OCA's decision and it is not clear whether he is merely appealing the noncompetitive designation or the alleged particular consequence of the designation that less-qualified officers were appointed and he was not the running of the statute of limitations must be resolved in Sgt. Adler's favor. Carter v. State of New York, 95 NY2d, at 270.
Additionally, case law suggests that when a petitioner challenges a hiring procedure or title standard, the agency's decision with regard to that position becomes final and binding when the agency actually fills the position, not when it announces it. For example, in Rumack v. McNamara, 195 Misc. 84, 87 (Sup.Ct., New York Cty., Apr. 13, 1949), affd. 275 A.D. 805, lv. denied 275 A.D. 903, petitioners claimed that the police department erred in allowing officers who had only been patrolmen for a year to compete for a position that required at least five years experience as a patrolmen. The court held that the statute of limitations did not run from when the agency announced that unqualified officers could sit for the examination, but rather, when the department began appointing officers pursuant to that examination and petitioners were not chosen. Id., at 87.
Likewise, in Martin v. Ronan, 44 NY2d 374, 380 (1978), rearg. denied, 45 NY2d 776, on remand, 65 AD2d 515, revd. on other grounds 47 NY2d 486 (1979), petitioners alleged that the transit authority improperly administered a promotional examination over two weekends because several candidates who took the test the second weekend were told the answers by candidates who had already taken the exam. Id., at 380. The Court of Appeals held that the transit authority's decision became final and binding when it promulgated the list of eligible candidates based on the examination, not when it unfairly administered the examination. Id. The Court reasoned, "petitioners had no reason to institute a judicial proceeding to challenge respondents' decision until they knew that they were aggrieved by it. It was not until the final revised eligible list was promulgated * * * that petitioners had a final determination from which to ascertain the possible consequences, as to them, of the allegedly improper examination." Martin v. Ronan, 44 NY2d, at 380-81.
In this case, Sgt. Adler was not aggrieved by the allegedly improper title standard until he was not chosen for appointment. It is axiomatic that had Sgt. Adler been promoted to Lieutenant, he would not have objected to the noncompetitive nature of the classification and would not have brought this Article 78 proceeding. Thus, the statute of limitations runs from the time that he was denied the promotion in August of 2004, and Sgt. Adler's petition, filed within four months of August 2004, is timely.
Despite its timeliness, Sgt. Adler's petition must be denied because he is guilty of laches.
Laches and the statute of limitations are different. While the statute of limitations involves a fixed statutory period in which an action must be brought, laches is an equitable doctrine under which a petitioner guilty of a lengthy delay in vindicating rights will be barred from bringing an action or proceeding if the delay causes prejudice to the adverse party. Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 816 (2003), cert. denied 540 U.S. 1017. The Court of Appeals has defined laches as "such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. The essential element of this equitable defense is delay prejudicial to the opposing party." Schulz v. State, 81 NY2d 336, 348 (1993) ( citing Matter of Barabash's Estate, 31 NY2d 76, 81, rearg. denied 31 NY2d 963).
In Rumack v. McNamara, 195 Misc., at 87, for example the case involving the authority of the police department to allow patrolmen with only one year of experience to compete for a position that previously required five years of experience the petition was denied based on laches. There, petitioners waited until over 1000 candidates took the allegedly improper examination and several candidates were appointed based on the examination results. Id. Similarly, in Save the Pine Bush, Inc. v. New York State Dept. of Envtl. Conservation, 289 AD2d 636 (3rd Dept. 2001), lv. denied 91 NY2d 611 (2002), petitioners were barred by the doctrine of laches because they waited until the State spent over $8,300,000 on an expansion project before bringing an Article 78 proceeding challenging the legality of the project.
Here, Sgt. Adler is guilty of laches because, upon discovering that the Lieutenant position would be noncompetitive in January or February of 2004, he did not ask for a stay of appointments to the Lieutenant position, nor did he challenge the noncompetitive designation of the position by appealing to OCA. Instead, Sgt. Adler waited to determine his own appointment status while over 700 candidates competed for the position pursuant to that title standard. During his delay, at least 150 court officers were appointed to the Lieutenant position and more continue to apply. A judicial determination at this late date would not only undo the hard work of the panel in interviewing over 700 candidates for the Lieutenant position, but it would unseat 150 Lieutenants from their posts, which they have held for almost one year. Therefore, the Court cannot consider this petition and it must be dismissed.
Failure to Exhaust Administrative Remedies
Sgt. Adler's petition is also denied for failure to exhaust administrative remedies.
Before commencing an Article 78 proceeding in Supreme Court, petitioners are required to "address their complaints initially to administrative tribunals * * * and to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts." Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 NY2d 371, 375 (1975) ( quoting 2 Cooper, State Administrative Law, 561 ). Section 25 of the Rules of the Chief Judge provides that, "Any nonjudicial employee * * * directly concerned in any classification or allocation of a position in the Unified Court System may seek review of that classification or allocation by submitting a request, in writing, to the director of personnel of the Unified Court System." 22 N.Y.C.R.R. 25.5(d). Thus, Sgt. Adler was required to submit a written request for appeal of the Lieutenant classification to OCA's director of personnel before commencing this Article 78 proceeding.
Sgt. Adler will not be permitted to avoid the administrative appeals process just because he alleges that OCA violated his constitutional rights and that any administrative appeal would have been futile. Although it is well-established that a petitioner asserting a substantial constitutional issue may, in some circumstances, circumvent the administrative appeals process to obtain immediate relief from the courts, "the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative procedures that can provide adequate relief." Valvano v. Jones, 122 AD2d 336 (3rd Dept. 1986); Pfaff v. Columbia-Greene Community Coll., 99 AD2d 887 (3rd Dept. 1984). Here, Sgt. Adler has merely asserted, in a conclusory manner, that his claim involves a constitutional argument; he has not, however, demonstrated any substantial violation of his constitutional rights warranting immediate judicial action.
Furthermore, a petitioner who seeks to appeal directly to a court without first exhausting administrative remedies on the basis of futility must first demonstrate that the merits of the petition have already been considered or predetermined by the administrative agency. Pfaff v. Columbia-Greene Community Coll., 99 AD2d, at 887. Sgt. Adler has failed to demonstrate that OCA already considered his grievance or that it would not fairly consider the issues if presented to it. As such, his petition is denied for failure to exhaust administrative remedies.
Failure to Join Necessary Party
Sgt. Adler's petition must also be denied for failure to join necessary parties.
A petitioner's failure to join a necessary party is grounds for dismissal of a proceeding or action. See, Ferrando v. New York City Bd. of Stds. and Appeals, 12 AD3d 287 (1st Dept. 2004); see also, CPLR 1003 and 3211(a)(10). Necessary parties are those "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action." CPLR 1001(a); see also, City of New York v. Long Isl. Airports Limousine Serv. Corp., 48 NY2d 469, 475 (1979). Pursuant to CPLR 1001(b), the court should consider five factors in determining whether to dismiss an action for nonjoinder of a party:
"(1) Whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder; (2) the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined; (3) whether and by whom prejudice might have been avoided or may be avoided in the future be avoided; (4) the feasibility of a protective provision by order of the court or in the judgment; and (5) whether an effective judgment may be rendered in the absence of the persons who is not joined."
Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d, at 819-20.
"Persons whose civil service status would be adversely affected by a judgment in an Article 78 proceeding must be joined as necessary parties." McGuinn v. City of New York, 219 AD2d 489, 490 (1st Dept. 1995), lv. dismissed in part, denied in part 87 NY2d 966 (1996).
Specifically, "when a petition seeks to annul an eligibles list or vacate appointments from it, persons appointed from that list are necessary parties within the meaning of CPLR 1001(a) * * * *." Altamore v. Barrios-Paoli, 229 AD2d 333, 336 (1st Dept. 1996), revd. on other grounds, 90 NY2d 378 (1997); see, e.g., Martin v. Ronan, 47 NY2d 486, 492 (1979) (in petition to challenge transit authority promotional examination, successful candidates were "necessary parties"); Samuel v. Ortiz, 105 AD2d 624 (1st Dept. 1984) (in petition to challenge custodial examination, the 406 employees who passed the exam and were then appointed were "necessary parties"), revd. in part on other grounds 106 AD2d 355; see also, Matter of Lodge v. D'Aliso, 2 AD3d 525 (2nd Dept. 2003) (in petition challenging promotion, police officers already promoted to rank of sergeant were "necessary parties"), lv. denied 2 NY3d 702 (2004); Mount Pleasant Cottage School Union Free School Dist. v. Sobol, 163 AD2d 715 (3rd Dept. 1990) (in petition to challenge failure to appoint petitioner as principal, current principal was "necessary party" and failure to join him mandated dismissal of proceeding), affd. 78 NY2d 935 (1991).
Furthermore, once the statute of limitations as to a necessary party has expired, a petitioner cannot join the party and avoid dismissal. Matter of Lodge v. D'Aliso, 2 AD3d, at 525-26 (relation-back doctrine inapplicable because agency and civil servants not "united in interest"); Mount Pleasant Cottage School Union Free School Dist. v. Sobol, 163 AD2d, at 716 (agency and principal not "united in interest" such that petitioner could avoid the statute of limitations).
Here, the 150 Lieutenants who were appointed pursuant to the challenged noncompetitive hiring process and have held the Lieutenant position for almost a year are clearly "necessary parties" to this action because if Sgt. Adler's petition were granted, they would all lose their posts. Additionally, no effective remedy can be granted in the absence of the appointed Lieutenants because the Court cannot vacate their appointments without displacing them from their positions. See, Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d, at 819-20. OCA, moreover, cannot fairly represent the Lieutenants' interests because OCA and the Lieutenants do not "stand and fall together." Mount Pleasant Cottage School Union Free School Dist. v. Sobol, 163 AD2d, at 716. Thus, Sgt. Adler's petition must be dismissed.
Sgt. Adler's contention that he should not be precluded for failing to join the Lieutenants because he asked OCA for their names and OCA refused to provide them is also without merit. See, Reply, at 23-24. Sgt. Adler is fully aware that New York court officers are represented by unions and, as such, could have joined the Lieutenants' unions to represent their interests. Additionally, even if Sgt. Adler were unaware of all the unions representing the Lieutenants, he at least knew the name and address of his own union, from which he could have learned the names of the other court officer unions.
In the end, OCA has established that the Lieutenants are "necessary parties" to the action and Sgt. Adler has not demonstrated any excuse for his failure to include them. Therefore, his petition must be denied.
Merits of Petition
Even if the Court were to reach the merits of Sgt. Adler's petition, the proceeding warrants dismissal.
Judicial reversal of an administrative order pursuant to CPLR Article 78 is limited to instances in which the agency acted arbitrary or capriciously. Pell v. Bd. of Educ., 34 NY2d. 222, 231-32 (1974); see also, Arrocha v. Bd. of Educ., 93 NY2d 361, 363 (1999); Matter of Nick v. State Div. of Hous. and Community Renewal, 244 AD2d 299 (1st Dept. 1997). So long as there is a rational basis supporting an administrative order, Judicial review is narrowly circumscribed and the agency's decision must be upheld. See, Pell v. Bd. of Educ, 34 NY2d, at 231; Guzman v. Safir, 293 AD2d 281 (1st Dept. 2002), lv. denied 98 NY2d 614.
Additionally, an agency's reasonable interpretation of the statutes and regulations it administers is entitled to substantial deference. Matter of Salvati v. Eimicke, 72 NY2d 784, 791 (1988), rearg. denied 73 NY2d 995 (1989).
In this case, Sgt. Adler contends that Judge Pfau and OCA violated Judiciary Law § 211(1)(d), Civil Service Law § 42, and 22 N.Y.C.R.R. 25.9 by classifying the Lieutenant position as "noncompetitive." Aff., at ¶¶ 7, 11, 12.
The Constitution of the State of New York provides that promotions to civil service positions are to be made "according to merit and fitness * * *, as far as practicable, by examination which, as far as practicable, shall be competitive." NY Const., art V, § 6; see also, 22 N.Y.C.R.R. 25.9. A civil service position may only be noncompetitive when the position calls for (1) a confidential relationship between the employee and appointing officer; (2) the exercise of a high level of authority or discretion; or (3) expertise or personal qualities that cannot be measured by competitive examination. Matter of Burke v. Axelrod, 90 AD2d 577, 578 (3rd Dep't 1982) (upholding determination that assistant counsel position should be "exempt" because position required policy-making abilities, which could not be tested by examination).
Nonetheless, the Chief Administrative Judge ("CAJ") may establish or change a classification for nonjudicial employees without conducting a hearing or consulting the Administrative Board or Court of Appeals because classifications are not "standards and administrative policies" under Judiciary Law § 211. See, Corkum v. Bartlett, 46 NY2d 424, 429 (1979); Uzenski v. Nadel, 112 AD2d 684, 685 (3rd Dep't 1985); see also, 22 N.Y.C.R.R. 80.1(b)(16). Indeed, the Court of Appeals has specifically advised that "only the CAJ possesses the expertise required to determine how new classifications and salary grades will impact on the budget and structure of the Unified Court System and his discretionary authority in these matters may not be usurped." Matter of Assn. of Secretaries to Justices of Supreme Surrogate's Cts. v. Off. of Ct. Admin., 75 NY2d 460, 476 (1990).
Here, it is clear that Judge Pfau's and OCA's determination that the Lieutenant position should be noncompetitive is supported by a rational basis. The title standards for Lieutenant clearly provide that Lieutenants perform supervisory and management duties, namely, "supervising security operations, ensuring the overall security management of an entire courthouse, and supervising several security teams." Aff., Ex. A, at 1. These duties undoubtedly require some degree of maturity and leadership that cannot be tested by a general competitive examination.
Furthermore, Sgt. Adler's submission of anecdotal evidence that one candidate who had not been a sergeant and who had almost no courtroom experience was appointed to the Lieutenant post instead of him cannot be considered as evidence by this court and is insufficient to prove OCA's determination was irrational.
On this record, Sgt. Adler has not demonstrated that OCA's determination was either arbitrary or capricious, and the determination must be upheld.
Accordingly, it is
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.
This constitutes the Decision, Order and Judgment of the Court.