ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

April 20, 2016

Reassigning individuals to perform duties alleged to be those of a position classified and allocated to a lower title and grade


Reassigning individuals to perform duties alleged to be those of a position classified and allocated to a lower title and grade
Alston v Bertoni, 2016 NY Slip Op 02897, Appellate Division, Third Department

As the result of a perceived increase in criminal activity, Village of Endicott Mayor John Bertoni, directed Endicott Police Chief Michael Cox to assign detectives to police patrol duties.

Chief Cox designated Detectives Scott Alston, Michael McEwan and James Surdoval to perform such police patrol duties.* As a result, these detectives "work[ed] part of [their] normal work week, during [their] normal work hours, in uniform on patrol." The detectives and their union, Endicott Police Benevolent Association, Inc., filed a petition pursuant to Article 78 of the CPLR challenging their patrol duty assignments. Supreme Court found that the assignments were permissible and dismissed their petition.

The detectives had contended that assigning detectives to patrol duty on a limited basis violated Civil Service Law §§58 and 75 by forcing them to perform work "beneath their rank and title" without a hearing,” appealed the Supreme Court's decision. The Appellate Division disagreed with the arguments advanced by the dectectives and sustained the Supreme Court’s ruling.

Initially the Appellate Division noted that the detectives had [1] been permanently appointed to their positions, and there is no dispute that they are entitled to "the higher salaried, preferred status of detective" and [2] they had held their positions as detectives for more than three years and thus they may "not be removed or otherwise subjected to any disciplinary penalty provided in [Civil Service Law §75**] except for incompetency or misconduct shown after a hearing upon stated charges."

With respect to any alleged violation of CSL §58, the court determined that the detectives had not been deprived of their detective positions as a result of their assignment to patrol duties nor was their pay or benefits as detectives adversely affected in any way by such an assignment. The court explained that “§58 only guarantees that the detectives will ‘be permanently designated as . . . detective[s] . . . and receive the compensation ordinarily paid to persons in such designation,’ its provisions are not implicated by the assignment here” challenged."

Significantly, the Appellate Division observed that it is well settled that [1] an employee's displeasure with a work assignment, absent an adverse impact on his or her civil service grade or title, salary or benefits, does not implicate Civil Service Law §75, citing Galatti v County of Dutchess, 64 NY2d 1163, and [2] the assignments of the detectives were within the sole discretion of "the appointing officer.”***

Finally, said the court, assigning the detectives to patrol duty on a limited basis was rational in light of the proof that residents of the Village were demanding a greater police presence to combat a perceived rise in lawlessness, demands that could not be met by hiring more patrol officers because of budgetary problems.

* A footnote in the Appellate Division’s decision refers to the job description for Detective, which included the provision that detectives are required to "[a]ssist Patrol Division concerning criminal cases," and that both detectives and juvenile division detectives must perform any "duties imposed upon them by … [s]pecial [o]rders and lawful orders of their [s]uperior [o]fficers."

** One of the penalties authorized by §75 is “demotion in grade and title.”

*** See Detective Endowment Assn., Police Dept., City of N.Y. v Leary, 36 AD2d 289, affirmed 30 NY2d 577

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger 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.
New York Public Personnel Law. Email: publications@nycap.rr.com