Jurisdictional classification of positions

Jurisdictional classification of positions
CSEA Local 1000 v State University of New York, 280 A.D.2d 832

Unless placed in a different jurisdictional classification by statute or by action of the civil service commission(s) having jurisdiction, all positions in the classified service are automatically included in the competitive class.* 

Accordingly, most “jurisdictional classification” questions concern the placement or the jurisdictional reclassification of a position in the competitive class of the classified service into the exempt, noncompetitive or labor class.

However, sometimes another “jurisdictional issue” is raised: is a particular position in the classified service or the unclassified service. The CSEA Local 1000 case raised such an issue and sets out the standards the court will apply in resolving such questions.

In 1998 the State University of New York [SUNY] announced a vacancy for a “warehouse staff assistant” position in the unclassified service at SUNY-Plattsburgh. CSEA Local 1000 objected to the jurisdictional classification of this position in the unclassified service, contending that the position was actually that of a “principal stores clerk”, a classified service position in the competitive class in a bargaining unit represented by Local 1000.

Section 35 of the Civil Service Law sets out the positions that are in the unclassified service. These include all elective offices; officers and employees of the state legislature and any other legislative bodies whose principal functions are directly related to the performance of the legislative functions of such body; and the head or heads of any department of the government.

Also included are “all positions in the state university in the professional service as defined in subdivision three of section three hundred fifty-five-a of the education law, which positions shall be determined by the chancellor of the state university and certified by him to the civil service commission....” Essentially Local 1000 charged that SUNY had abused its discretion when it designated the warehouse staff assistant as an unclassified professional position.

Affirming the Chancellor's determination, the Appellate Division said that “[w]hile we must look to the duties, not the title, to determine the proper classification of a position, a comparison of the duties and job requirements for the position of “principal stores clerk” with those of the “staff assistant” reveals that the positions are not “so substantially similar as to be appropriately termed identical.”

The Appellate Division noted that the positions have “vastly different educational requirements” and many different duties and, while some of the duties of each position appear similar, clearly the “staff assistant” position entails more managerial tasks and greater responsibilities.

The Appellate Division's conclusion: CSEA's allegation that the designation of the position as a “staff assistant” was arbitrary and capricious is not supported by evidence and, consequently, cannot be said to lack a rational basis.

* Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law]. Positions in the unclassified service consist essentially of elected officials, department heads and educators, and are listed in Section 35 of the Civil Service Law.

Equal pay - Judges

Equal pay - Judges
Affronti v Crosson, NYS Court of Appeals, 95 NY2d 713

Sometimes one employee of the State of New York will receive a supplement to his or her annual salary not being paid to another State worker employed in the same title. Typically such differences result from the supplements to annual compensation based on “geographic” considerations [Civil Service Law Section 130.7], “hazardous duty differentials” [Civil Service Law Section 130.9], an “occupational pay differential” [Civil Service Law Section 130.13] or the payment of a “shift differential” [Civil Service Law Section 130.6].*

Accordingly, certain State employees may receive a different amount as total compensation than that paid to other State employees appointed to the same title. Does such an arrangement violate the “Equal Protection” mandates of the Fourteenth Amendment or the State's policy of “equal pay for equal work” [Civil Service Law Section 115]? Essentially this was the question raised by the Affronti case.

State Family Court judges serving in Monroe County and State Family Court judges in Sullivan, Putnam and Suffolk Counties do not receive the same rates of compensation.

The Family Court judges in Monroe County sued the Office of Court Administration [OCA], contending that “the statutorily enacted pay disparities” between and among Family Court judges “violate their rights to equal protection under the 14th Amendment of the Federal Constitution and Article I, Section 11 of the State Constitution.”

In support of their claim, the Monroe County judges presented evidence of “a similarity -- in the functions, duties and responsibilities performed -- between themselves and Judges in the other counties,” together with economic data related to the “cost of living” in certain areas to support their claim. OCA presented expert testimony and statistical data showing a cost of living differential between Monroe and Suffolk Counties and rested its case.**

The test applied by the Court of Appeals in resolving the controversy: was there a rational basis for these salary disparities?

According to the ruling, where a governmental classification is not based on an inherently suspect characteristic and does not impermissibly interfere with the exercise of a fundamental right, it need only rationally further a legitimate state interest to be upheld as constitutional.

Finding that the challenged “disparate judicial salary schedules in Judiciary Law Sections 221-d and 221-e do not involve suspect classes or fundamental rights,” the Court of Appeals ruled that the Monroe County judges claims were to be resolved on a “rational basis review.” The court's conclusion: The challenged provisions of the Judiciary Law had a rational basis and thus do not violate equal protection.

According to the decision, the fact that Putnam County Court Judges performed multiple judicial roles preclude a finding of any “true unity of judicial interest in the compared posts” and thus provide a rational basis for the statutory salary differentials.

In addition, the Court of Appeals decided that the Monroe County judges “proffered no proof that the costs of living in Monroe and Suffolk County are comparable”, thereby failing to demonstrate a “true unity of ... judicial interest ... indistinguishable by separate geographic considerations”.

Presumably the same analysis would be applied in cases involving challenges to pay differentials granted to State employees pursuant to one or more of the relevant subdivisions of Section 130 of the Civil Service Law.

* The provisions of Article VIII of the Civil Service Law -- Classification and Compensation of State Employees -- do not apply to employees of municipalities and political subdivisions of the State.

**Limited evidence concerning this matter was introduced by OCA. The Court of Appeals said, “the State has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data”.

Employee may be subject to discipline for "off the job" misconduct

Employee may be subject to discipline for "off the job" misconduct
Rivera v Farrell, NYS Supreme Court, Justice Stallman, [Not selected for publication in the Official Reports]

From time to time an employee is served with disciplinary charges alleging that his or her off-duty conduct violated a rule or regulation of the employer. The Rivera case involves such a situation.

Rivera, a New York City Department of Sanitation [DOS] supervisor, was “moonlighting” as an income tax adviser. According to the decision, Rivera “promoted a tax-evasion scheme, informed other DOS workers about how to evade taxes, and filled out their payroll forms so that taxes would not be withheld, in return for a fee.”

Served with disciplinary charges, Rivera was terminated after being found guilty of violations of the DOS Code of Conduct by his filing a W-4 tax withholding allowance certificate falsely claiming exemptions to which he was not entitled, falsely claiming “tax-exempt status” and failing to a file a tax return for the tax year 1994.

The decision indicates that Rivera had earlier pled guilty to failing to file a tax return for the tax year 1994, a misdemeanor.

DOS alleged that Rivera violated Code of Conduct 3.2, by engaging in conduct prejudicial to good order and which tends to discredit the City or Department, and Code of Conduct 4.4, filing false records or statements.

Rivera appealed, contending that dismissal “was disproportionate compared to sanctions imposed in similar cases.” He claimed that (1) others similarly situated, with worse disciplinary records, received suspensions, not termination and (2) three sanitation workers who failed to pay taxes and filed false W-4 forms received 30-day suspensions.

Judge Stallman, after distinguishing the misdeeds of the other DOS workers cited by Rivera with respect to the disciplinary penalties imposed, upheld Rivera's termination. The court said that Rivera had failed to meet his burden of proving that DOS acted arbitrarily, capriciously or contrary to law. Under the circumstances, said the court, the penalty of termination “does not shock the judicial conscience; it was thus not an abuse of discretion.”

As an alternative argument for overturning his termination, Rivera submitted a Certificate of Relief from Civil Disabilities he had obtained pursuant to Section 701 of the Corrections Law. Judge Stallman, after commenting that Rivera failed to demonstrate the relevance of the Certificate insofar as this case was concerned, indicated that even if it were relevant, such a certificate does not exempt a civil servant from administrative discipline.

As to a court's authority to overturn or modify an administrative disciplinary decision or a disciplinary penalty imposed on a worker, the Court of Appeals, in its March 22, 2001 decision in Kelly v Safir, 96 N.Y.2d 32, [decided with Elliott v City of New York], said that:

1.The courts may not modify such a determination if substantial evidence supports it; and

2.A court must uphold an administrative penalty unless it finds that it is so disproportionate to the offense as to be shocking to one's sense of fairness -- the Pell standard [Pell v Board of Education, 34 NY2d 222].

Kelly was terminated after being found guilty of unauthorized “off-duty employment” and falsifying records. Meagher was penalized ten vacation days after being found guilty of using excessive force in the course of making an arrest.

The Appellate Division ruled that the penalties imposes were “disproportionate” based on the officers' service records, notwithstanding the fact that substantial evidence supported the findings of fact.

Notice of claim pursuant to Education Law §3813

Notice of claim pursuant to Education Law §3813
CSEA v West Islip UFSD, Supreme Court, Suffolk County, Justice Doyle, [Not selected for publication in the Official Reports]

Justice Doyle, holding that “is well established that as a condition precedent to an action against a school district, Education Law Section 3813 requires that a notice of claim be presented to the governing body of the school district within 90 days from the accrual of the claim,” dismissed CSEA's law suit alleging a “breach of contract” because it had not filed a timely “Section 3813” notice of claim.

The events leading to this litigation are fairly simple. Luanne Dunne and Patricia Plompen was appointed by the West Islip Union Free School District to clerk-typist positions in 1998, positions in the negotiating unit represented by CSEA. Each was scheduled to work 17.5 hours per week. A full-time clerk-typist works 35 hours a week.

The district refused to provide health insurance to Dunne and Plompen on the ground that they only worked part-time. CSEA, however, argued that the collective bargaining agreement provides for employees to be eligible to participate in the Enhanced Empire Health Insurance Plan and for the cost to be paid by the District. The agreement, according to CSEA, “covers all unit members and does not distinguish between part-time and full-time employees with respect to health insurance benefits.”

The district, on the other hand, contended:

1. Since at least 1985 it did not to provide health insurance to individuals working one-half or less of a full-time schedule; and

2. No grievance had ever been filed concerning its not providing health insurance to such part-time workers in the unit.

In September 1999 CSEA sued the district. West Islip asked the court to dismiss its complaint because CSEA had not filed a notice of claim within 90 days after accrual of the claim as required by Education Law Section 3813. CSEA, argued the district, was now time-barred from litigating the dispute.

Holding that CSEA's claims accrued in July and August 1998, when Dunne and Plompen were hired without being given health insurance benefits, the court said that under the facts of this case, it did not have any authority to allow CSEA to serve a late notice of claim.

Justice Doyle commented that the grievance procedure set out in the collective bargaining agreement “was merely an alternative remedy” and did not serve to toll the statute of limitations otherwise applicable for perfecting an Article 78 action.

The court granted the district's motion for summary judgment dismissing CSEA's petition.

There are some exceptions to the “well established” rule noted by Justice Doyle, however -- the key element appearing to be whether or not the school district had “actual notice” or “knowledge” of the allegations within the time limits set out in Section 3813.

In Union-Endicott Central School District v PERB, 197 AD2d 276 the Appellate Division clearly ruled that compliance with Section 3813 “is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge.” The Court of Appeals declined to hear the appeal from Appellate Division's decision.

However, this was not the end of the matter. Union-Endicott involved allegations of improper practices filed by an employee organization. Here, said the court, although the Association had not filed a formal Section 3813 notice of claim, it had, in fact, filed its charges with PERB within five weeks of the District's declaration of impasse in contract negotiations with the Association and PERB had sent a copy of the Association's allegations to the District.

Therefore, the Appellate Division concluded, the District had received its copy of the charges “within 90 days after the claim arose as evidenced by the fact that it had filed its answer to the charges [with PERB] within the 90-day period.”

As the purpose of the Section 3813 “notice of claim” requirement is to give a school district prompt notice of claims to permit its efficient investigation, here, the court concluded, there was substantial compliance with Education Law Section 3813 since all that is required is that the school district be sufficiently informed of the claim in a timely manner.

Probationer terminated for failure to correct a report

Probationer terminated for failure to correct a report
Morgan v Safir, 281 A.D.2d 376

The failure to correct his incorrect report resulted in the termination of New York City probationary police officer Lealand A. Morgan.

Morgan challenged his dismissal but he was unable to persuade the court to direct his reinstatement to his former position.

According to the decision, Morgan conceded that he failed to correct his report concerning the loss of his shield and identification badge after learning that it was incorrect.

This, said the Appellate Division, “indicates legitimate reasons for questioning [Morgan's] honesty and candor. In view of this, Morgan failed to show that his termination was in bad faith.”