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June 24, 2010

Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation

Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Woodward v GOER, 279 A.D.2d 725

The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.

One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.

When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.

Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.

A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:

"[n]o 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 reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".

The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."

The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."

In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."

In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.

Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.

However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.

Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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