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Wednesday, 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:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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