The Governor's Office of Employee Relations denied certain out-of-title work grievances filed by the President of the New York State Public Employees Federation, [PEF] AFL-CIO, the certified representative of employees in the Professional, Scientific and Technical Services bargaining unit, on behalf of a number of aggrieved members of the collective bargaining unit.
The aggrieved members of the bargaining unit were employed by the New York State Division of State Police in the title of Program Research Specialist [PRS], Salary Grade 18, in the Criminal Intelligence Section of the New York State Intelligence Center [NYSIC]. PEF contended that the grievants had been assigned to perform the duties of an Intelligence Analyst, [IA] Salary Grade 25, a title that PEF alleged existed exclusively within the Counter Terrorism Section of NYSIC in violation of Civil Service Law §61(2) and in violation of certain terms set out in the controlling collective bargaining agreement. State Police denied the grievance on procedural grounds.
Upon appeal, the Governor's Office of Employee Relations [GOER], in conformance with the recommendations of Division of Classification and Compensation of the Department of Civil Service, GOER concluded that the grieving employees were working out-of-title and directed the State Police to "cease and desist from making such out-of-title assignments." GOER further concluded that additional compensation was unwarranted as the out-of-title work performed was appropriate to salary grade 18.*
PEF then commenced a CPLR Article 78 proceeding challenging GOER's determination. Supreme Court sustained GOER's decision to the extent that it denied the individual grievants additional compensation for their out-of-title work relating to criminal intelligence and anti-crime duties and remanded the matter to GOER to:
1. More fully develop the administrative record with respect to the individual grievants' counter-terrorism duties; and
2. Issue a new determination addressing whether the individual grievants were entitled to additional compensation for performing those specific duties.
PEF appeal Supreme Court's ruling.
Citing Matter of Brenner v Governor's Off. of Empl. Relations, 3 AD3d 644, the Appellate Division affirmed Supreme Court's decision, holding that "it was not erroneous for Supreme Court to remit for a new determination following development as to the alleged counter-terrorism duties, the length of time each individual [employee] engaged therein and the ratio of any such duties to each individual [employee's] work as a whole".**
Addressing GOER's ultimate conclusion that the grieving employees' duties were appropriate to salary grade 18, the Appellate Division said that the controlling provisions of the applicable collective bargaining agreement provided "out-of-title duties found to be appropriate to the same salary grade as that held by the affected employees do not entitle those employees to monetary compensation; rather, in such circumstances, the employees are entitled only to a declaration that the duties were out-of-title and to a discontinuance of the out-of-title assignments", citing Matter of Spence v New York State Governor's Off. of Empl. Relations, 183 AD3d 1199, leave to appeal denied, 35 NY3d 916.
Concluding that judicial review of GOER's determination in this context is limited to assessing whether it is arbitrary and capricious, the Appellate Division said that considering the similarities between the criminal intelligence duties performed by the individual employee during the relevant time period and the new IS 1 classification standard, it found no basis for disturbing that aspect of GOER's determination.
Accordingly, the Appellate Division held that Supreme Court properly partially dismissed PEF's petition.
* The Appellate Division noted that the subject grievance and others like it ultimately led to the Department of Civil Service reclassifying the PRS and IA titles within NYSIC to a new title series — State Police Intelligence Analyst 1-4, Salary Grades 18, 23, 25 and 29.
** The Appellate Division opined that "that the procedural posture of this appeal is less than ideal; when faced with an administrative determination that is inadequate to permit meaningful judicial review, the better practice would be for Supreme Court to withhold decision, remit for a new or supplemental determination and to then consider the matter as a whole, avoiding piecemeal review."
Click HERE to access the Appellate Division's decision posted on the Internet.