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December 07, 2020

An appointing authority may not require an employee to perform "out-of-title" work except in an emergency

The Watertown Professional Firefighters' Association, Local 191 [Association] commenced this CPLR Article 78 proceeding, later converted into a declaratory judgment action, seeking a court order prohibiting the City of Watertown [City] from [1] assigning a fire captain to perform municipal training officer (MTO) duties and [2] assigning  firefighters to ride in the right front seat of the fire department's rescue vehicle and to perform certain duties alleged to those of captain.

The Association contended that both such assignments constituted out-of-title work in violation of Civil Service Law §61(2).* 

Supreme Court's ruled that:

1. The appointing authority may not designate a firefighter to serve as an "acting captain" except in legitimate emergency situations; and

2. The appointing authority may appoint a fire captain to perform "municipal training officer duties."

In the appeal that followed, the Appellate Division said it agreed with the Supreme Court's rulings that the fire captain was not assigned out-of-title work with respect to being assigned MTO duties and that the City was prohibited from appointing firefighters to acting captain positions except in legitimate emergency situations.

The Appellate Division, however, noted that Supreme Court "failed to declare the rights of the parties with respect to the MTO duties performed by the fire captain." Citing Skalyo v Laurel Park Condominium Bd. of Mgrs., 147 AD3d 1358, the Appellate Division modified the lower court's decision by "making the requisite declaration."

* §61(2) of the Civil Service Law provides as follows: 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.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06898.htm

 

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