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January 26, 2011

Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2

Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2
MacRae v Dolce, 273 AD2d 389; motion for leave to appeal denied: 95 NY2d 765

Duncan MacRae, in his capacity as president of the City of White Plains firefighters union, challenged the Fire Department’s policy of routinely ... assigning ... fire fighters to perform the duties of an ‘Officer/Designated Fire Fighter’ as described in the [Fire Department’s] Manpower Accountability Standard Operating Procedure [MASOP] as constituting out-of-title work.

Essentially, MacRae complained that the City of White Plains was assigning its firefighters to perform the duties of a Fire Lieutenant in non-emergency situations.

A State Supreme Court justice dismissed complaint, ruling that the department’s policy was proper and does not violate Article V, Section of the New York Constitution or Section 61.2 of the Civil Service Law. The ruling did not pass muster when the Appellate Division considered MacRae’s appeal.*

The Appellate Division reversed the lower court’s ruling and barred White Plains from routinely assigning its firefighters to perform the duties of fire lieutenant on a non-emergency basis.... The Appellate Division, agreeing with MacRae, held that the City’s policy of routinely assigning firefighters to perform the duties of fire lieutenant on a non-emergency basis violates Civil Service Law Section 61.2.

The court said that the policy provided for the routine, non-emergency imposition upon firefighters of supervisory duties not in their job description and required firefighters to routinely perform supervisory functions clearly within the ambit of the job description applicable to fire lieutenants.**

The court rejected the department’s argument that the MASOP merely codified a long-standing practice of requiring motor and pump operators to perform certain of the duties of fire lieutenants, commenting that the routine temporary assignments improperly harden to a pattern for permanently filling the positions of fire lieutenant.

* Section 61.2 provides as follows: Prohibition against out-of-title work. 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 reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

** In contrast, the designation of an individual to serve as the “temporary supervisor” when the supervisor is temporarily absent when on vacation or ill is not considered “out-of-title” work within the meaning of Section 61.2.


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