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April 18, 2011

Out of title work and position classification determinations

Out of title work and position classification determinations
Curtiss v Angello, 269 AD2d 675

The Appellate Division recently considered a number of issues involving the classification and allocation of positions in the public service.

In Curtiss, the Appellate Division, Third Department addressed a rather unusual situation: an administrator’s reliance on new, but not yet official, job specifications rather than official but obsolete job descriptions in resolving an “out-of-title” work grievance.

John F. Curtiss, a Fish and Wildlife Technician II employed by the State Department of Environmental Conservation, filed a grievance claiming that he was working “out of title.”

Although Environmental Conservation sustained the grievance, the then State Director of the Governor’s Office Employee Relations [OER], Linda Angello, reversed the agency’s determination and denied Curtiss’ grievance. Curtiss sued, challenging Angello’s decision on the grounds that it was arbitrary and capricious.

Essentially, Curtiss wanted to be reclassified to Fish and Wildlife Technician III. Angello, in rejecting the grievance, determined that the duties of a Fish and Wildlife Technician III included region-wide coordination of programs and direct supervision of subordinate staff, duties that Curtiss did not perform.” Angello’s findings, however, were based on new, “tentative specifications” for the two positions rather than the then current “official” job descriptions for the two titles.

The Appellate Division sustained Angello’s determination, noting that the “relevant standard of review is whether the record as a whole provides a rational basis for the determination denying [Curtiss’] grievance.

Curtiss argued that Angello’s determination was arbitrary because it was not based exclusively on the “official” job classification specifications promulgated by the State’s Division of Classification and Compensation in effect when his grievance was actually filed.

Classification and Compensation’s “official” specifications referred to by Curtiss had been issued in 1970. Angello unquestionably had considered new and “tentative” job descriptions for the Fish and Wildlife Technician II and Fish and Wildlife Technician III titles in making her determination.

These “tentative” job descriptions for the two titles had been prepared by the State Department of Civil Service following its review of the duties being performed by incumbents of a number of positions in Environmental Conservation.

Civil Service found that the duties of the incumbents of the various titles in Environmental Conservation that it had reviewed “had changed over time, rendering the 1970 specifications obsolete.” In March 1998, after Curtiss had filed his grievance, new job descriptions for the Fish and Wildlife Technician II and III titles were promulgated and the positions were reallocated to higher salary grades.

The court held that it was neither arbitrary nor irrational for Angello to consider the results of the job audits prepared by Civil Service as they “disclosed the actual duties being performed by incumbents.”

As to title held by Curtiss in particular, the Appellate Division said that “in the 1970 specifications the principal distinction between the two titles was the greater supervisory and administrative responsibility of the higher grade title.” The audits, said the court, revealed that “although the duties of the incumbents had changed, the principal distinction continued to be the greater supervisory and administrative responsibility of the higher grade title.”

Curtiss had cited Rausch v Pellegrini, 237 AD2d 771, in support of his “out of title” work argument. The Appellate Division said that Rausch was not relevant in this case, noting that unlike Rausch, Curtiss “was not obligated to perform the duties of his supervisor.”

Further, said the court, the fact that there is some overlap of the duties performed by Curtiss and those performed by a Fish and Wildlife Technician III does not justify sustaining his grievance.

Finding that the record as a whole provides a rational basis for Angello’s conclusion that Curtiss was not performing out-of-title work, the Appellate Division sustained the lower courts dismissal of his petition.

Readers may have noted another interesting aspect of this case -- Curtiss had “won” his grievance at the departmental level. As the “employer” makes the determination in pre-arbitration steps of the grievance procedure, typically any appeal is filed by the grievant or his or her representative.
May the employer, in effect, “appeal” a grievance determination by an official at an earlier step in the grievance procedure and then reverse the earlier “lower level” grievance ruling favorable to the employee made by management?

This was the significant issue addressed in Weed v Orange County, a case decided by the Appellate Division in the early 1990’s.

Weed was injured on the job. The Orange County Commissioner of Personnel rejected Weed’s application for a one-year leave of absence with full pay. Weed claimed he was entitled to such leave under the terms of “Article 20” of the then controlling Taylor Law agreement.

After the Commissioner disapproved his application, Weed filed a “Step One” grievance with his immediate supervisor in accordance with the terms of the grievance procedure set out in the collective bargaining agreement. The supervisor sustained the grievance. The Commissioner of Personnel, however, refused to implement the supervisor’s ruling.

Weed sued, only to have the Appellate Division dismiss his complaint. The court said that under the terms of the collective bargaining agreement, “the Commissioner of Personnel is given sole discretion in granting paid leave.” According to the opinion, there was no evidence that the parties to the agreement “intended to limit the discretion of the Commissioner of Personnel.”

The Appellate Division said that in the absence of any such evidence, there was no rational basis for the supervisor’s “construing Article 20 as a mandatory requirement [to grant paid leave to Weed] on the part of the County.”

The bottom line: the County was not required to comply with the determination by Weed’s supervisor, who had initially sustained Weed’s grievance.

Finally, the decision reports that the two titles in question were “reallocated to a higher grade and, presumably, the incumbents were entitled to have their salaries adjusted accordingly. What happens if the titles are reallocated to a lower grade?

Typically, the permanent incumbents serving in the positions reallocated to a lower salary grade would be “grand fathered” to protect their salaries.* Any future salary increases would be subject to the maximum of the lower salary grade to which the titles were reallocated. The grand fathering of salaries to protect the income of incumbents of positions that have been reallocated to a lower salary grade is illustrated by the decision in the New York State Court Clerks Association case.

The Office of Court Administration [OCA] had decided that the salary grade of existing trial court clerk titles should remain unchanged, based upon “an extensive review of the trial and appellate-level court clerk titles for the purpose of establishing joint salary scales.” OCA also decided that some court clerk positions should be reallocated to a lower salary grade.

OCA protected the salaries of the permanent employees serving in appellate court clerk titles whose positions had been reallocated to a lower salary grade by “grand fathering” their salaries. The Appellate Division said that “grand fathering permanent incumbents in the context of a downward reclassification of their titles is an accepted practice that effectuates the mandate of Civil Service Law Section 121(2)(a)....”

Section 121(2)(a) provides that “the annual salary of any position ..., which is classified or reclassified, or which is allocated or reallocated to a salary grade pursuant to the provisions of this article shall not be reduced for the then permanent incumbent by reason of any provision of this article so long as such position is held by the then permanent incumbent”

The court said that “contrary to petitioner’s contention,” although grand fathering, results in some “transitional salary inequities,” it constitutes “a rationally justifiable means of facilitating the orderly implementation of [OCA’s] Classification Plan”. Accordingly, the Appellate Division, citing the Court of Appeals ruling in Tolub v Evans, 58 NY2d 1, held that OCA’s action “does not offend due process,” because in matters concerning the State’s budget, “equal protection does not require that all classifications be made with mathematical precision.”

Finally, the court said that “[a]dministrative determinations concerning position classifications ... will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis”, citing Cove v Sise, 71 NY2d 910, 912.

* In such cases the position is typically “red-lined” or “earmarked” for allocation upon its becoming vacant.

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