Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed

Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed
Source: State Register, January 5, 2011

The NYS Register dated January 5, 2011 reports that “Pursuant to section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and President of the Commission during calendar years 2001 and 2006.”

Below is a brief description of each rule to be reviewed, the statutory authority underlying its promulgation, and a statement setting forth the justification for the ongoing need for each rule and its proposed continuation without further modification.

Rules adopted by the New York State Civil Service Commission during the Calendar Year 2001

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 64(4)

Description of the Rule: The rule repealed sections 4.11 and 4.12 of the Rules for the Classified Service and added a new section 4.11 to such Rules.

The rule describes the rights and limitations of ‘‘contingent permanent’’ appointments to positions in the competitive, non-competitive and labor classes, which are defined as permanent appointments to positions that have been temporarily left vacant due to a leave of absence of the permanent incumbent of the position.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions) Statutory Authority: Civil Service Law section 6

Description of the Rules: The rules amended sections 28-1.3(b), 28-2.1(c) and 28-3.7(a) and (c) of the Attendance Rules for managerial/confidential employees in New York State Departments and Institutions.

Sections 28-1.3(b) and 28-2.1(c) were amended upon the request of the Governor's Office of Employee Relations (GOER) to provide that qualified managerial/confidential employees may utilize up to 200 days of accrued sick leave credits to pay for health insurance premiums during retirement.

The amendments to sections 28-3.7(a) and (c) provide that the rules governing donations of leave credits for managerial/confidential employees shall be consistent with such leave donation policies granted represented employees through collective bargaining agreements.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.


Rules adopted by the New York State Civil Service Commission or Regulations adopted by the President of the Civil Service Commission during the Calendar Year 2006

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified
Service) Statutory Authority: Civil Service law section 63

Description of the Rule: The rule revised section 4.5 of the Rules for the Classified Service to provide for probationary terms for positions of University Police Officer 1 and University Police Officer 1 (Spanish Language) of not less than 52 nor more than 78 weeks.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.

Amendment to Chapter V of the Title 4 of NYCRR (Regulations of the Department of Civil Service [President's regulations]) Statutory Authority: Public Officers Law sections 87, 89

Description of the Rule: Public Officers Law Article 6 (Freedom of Information Law; ‘‘FOIL’’) requires subject agencies to adopt regulations regarding public access to records.

The regulation amended Part 80 of the President's Regulations, ‘‘Public Access to Records,’’ to conform the language of such Part with provisions of FOIL by replacing references to ‘‘applications’’ for records with ‘‘requests ‘‘for records.

In accordance with FOIL, the regulation specifies how requests shall be acknowledged and addresses when the Department is unable to grant or deny a request for records within the initial twenty day period from when the request is received.

Proposed Action: The rule is required by the Public Officers Law and shall be continued without modification.

Various amendments to the Appendices to the Rules for the Classified Service

Appendix 1 (Exempt Class)

Appendix 2 (Non-competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, sections 6 and 42; 4 NYCRR 2.2

N.B. Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from compliance with Executive Order No. 20 review requirements by the Governor's Office of Regulatory Reform (GORR), upon a finding by GORR that such review lacked substantial benefit.

Based upon this determination by GORR, and pursuant to subdivision (5) of SAPA section 207, a full recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted by the Civil Service Commission during calendar years and 2001 and 2006 is hereby omitted.

Public Comments:

There is a forty-five (45) day public comment period following publication of this notice in the State Register on January 5, 2011.

Requests for information and public comments should be addressed to Judith I. Ratner, Esq., Deputy Commissioner and Counsel, Department of Civil Service, Alfred E. Smith Bldg., Albany, NY, 12239, (518) 473-2624, or by e-mail to judith.ratner@cs.state.ny.us

Equal pay for equal work

Equal pay for equal work
Bertoldi v State of New York, 275 AD2d 227; Motion to appeal denied, 96 NY2d 706; Motion to appeal on constitutional grounds denied, 95 NY2d 958

Section 115 of the Civil Service Law provides that State employees are entitled to equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.

While Section 115 applies only to employees of the State of New York, in Evans v Newman, 71 AD2d 240, the Appellate Division ruled that nonjudicial court employees were to be treated consistent with the provisions of Civil Service Law Article 8, Classification and Compensation of State Employees.

The Appellate Division, First Department’s interpretation of Section 115 proved critical in resolving Bertoldi’s claim that certain trial court clerks were entitled to back salary because their positions had been improperly allocated to a lower salary grade.

The New York State Court Clerks Association and other clerks employed by the State’s Unified Court System complained that appellate court level clerk positions had been allocated to higher salary grades than trial court clerk positions. The Classification Review Board found that trial clerks and appellate clerks were essentially performing the same type of work with equivalent difficulty, and that they were therefore entitled to equal pay.

The trial clerks then sued to recover the salary differential for the approximately 14 years the appellate clerks received a higher salary. The Appellate Division rejected the trial clerks’ theory that Section 115 mandated that they be awarded such retroactive pay. The court said that:

1. The principle of equal pay for equal work need not be applied in all cases under any and all circumstances; and

2. Section 115 enunciates a policy and confers no jurisdiction on a court to enforce such policy.

The court characterized the discrepancy in pay as due to oversight or error and therefore insufficient to establish that [the trial clerks] were not provided equal pay for equal work.

Also rejected was the trial clerks’ contention that they were denied equal protection under the New York State and United States Constitutions as a result of the allocation of the two titles to different salary grades.

The court’s rationale: the decision not to award the trial clerk’s the pay differential had a rational relationship to a legitimate state interest in view of the high costs involved and the limited ability of the court system to absorb such costs within its existing budget.

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits
Greenway v NYS Employees’ Retirement System, 274 AD2d 662; Motion to appeal dismissed as untimely, 95 NY2d 917

Corrections Officer Gary Greenway’s appeal of a determination by the New York State Employees’ Retirement System rejecting his application for performance of duty disability retirement appeared to present a familiar scenario: the System’s physician concluded that Greenway was not permanently disabled; Greenway’s physician came to the opposite conclusion.

However, there was a significant difference between the two opinions. The System’s medical expert’s opinion was based on his physical examination of Greenway and his review of Greenway’s medical records and diagnostic test results. In contrast, although Greenway’s medical expert concluded that he was permanently incapacitated, the court pointed out that his opinion was not based upon Greenway’s present condition but upon the possibility that Greenway might sustain a serious permanent injury in the event that he was assaulted by an inmate in the future.

The court said that in order to demonstrate his entitlement to accidental and performance of duty disability retirement benefits, Greenway was required to demonstrate that he currently was permanently incapacitated from the performance of his duties. This he failed to do considering the statement of his medical expert that he could be permanently disabled as the result of an assault by an inmate in the future.

Given the nature of conflicting medical opinions offered in this case, the Appellate Division concluded that it was within the Comptroller’s discretion to weigh the expert testimony in the record and to accept the opinion of one medical expert as more credible than that of the other. The court then dismissed Greenway’s appeal.

Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action

Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action
Arkport Staff United v Arkport Cent. School Dist., 2010 NY Slip Op 09745, Appellate Division, Fourth Department

The Arkport Staff United claimed that members were entitled to longevity increases under Article 27 of a collective bargaining agreement between it and the Arkport Central School District.

Claiming that the union’s lawsuit was untimely, the School District asked Supreme Court to dismiss the union’s petition court in view of the four-month statute of limitations applicable to CPLR article 78 proceedings.

Supreme Court denied Arkport’s motion.

The Appellate Division sustained the Supreme Court’s determination, holding that the union’s action was subject to the six-year statute of limitations applicable to "breach of contract" actions rather than the four-month statute of limitations controlling filing an Article 78 action.

As the union’s “underlying claim” is an action on the contract – in this instance a collective bargaining agreement -- the Appellate Division said that its lawsuit was timely as it had been commenced “within six years of the alleged breach” of the agreement.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09745.htm

Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms

Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms
Matter of Monroe County Sheriff's Off. v Monroe County Deputy Sheriffs' Assn., Inc., 2010 NY Slip Op 09797, Appellate Division, Fourth Department

In a CPLR Article 75 proceeding seeking to vacate an arbitration award Supreme Court held that the arbitrator had exceeded his authority by adding an implied contract term to the collective bargaining agreement (CBA) based on the Sheriff Department’s past practice.

The Appellate Division agreed, explaining that while "[p]ast practices may be considered by an arbitrator . . . when interpreting a specific contractual provision . . .[, a]n arbitrator may not rewrite a contract by adding a new clause based upon past practices," citing Hunsinger v Minns, 197 AD2d 871.

On the other hand, said the court, it agreed with the Deputy Sheriff’s Association that Supreme Court was incorrect in concluding that the arbitrator exceeded his authority by determining that Sheriff’s Office’s denial of paid release time requests submitted by members of Association t to prepare for upcoming contract negotiations with the Office was unreasonable.

The court noted that the CBA provided that requests for "[r]elease time for union business shall not be unreasonably denied" by the Sheriff’s Office.

Accordingly, it ruled that the arbitrator determination that that the denial of the Association’s requests “to keep overtime costs down” was unreasonable absent evidence of some "financial exigency."

In addition, the Appellate Division said that it deemed that the arbitrator's reasonableness determination was not irrational inasmuch as "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09797.htm