Out of title work

Out of title work

Rausch v Pellegrini, 237 A.D.2d 771 

Muzzillo v Mt. Vernon Civil Service Commission, 238 A.D.2d 425

Muzzillo v Mt. Vernon City School District, 238 A.D.2d 424

From time to time an employee will complain that he or she is performing out-of-title work. Typically an individual who is working out-of-title, except in situations constituting a "temporary emergency," must be compensated at the appropriate salary or grade level or the out-of-title work assignment discontinued. The Rausch and Muzzillo cases involve allegations of out-of-title work.

       The Rausch Decision

To handle out-of-title work complaints expeditiously, the collective bargaining agreement between the State of New York and the Civil Service Employees Association includes a grievance procedure for resolving out-of-title work complaints.

Henry Rausch, an employee of the State Department of Correctional Services [DCS], complained that although he was being paid the salary of a Correctional Facility Food Administrator I [FFA I], as the result of a reorganization of DCS's food service system he was actually performing the duties of an FFA II. He filed an out-of-title work grievance, contending that he should be paid at the salary grade of the higher level position.

Rausch's grievance was ultimately rejected by the Governor's Office of Employee Relations on the grounds that his duties had been modified in connection with the reorganization of the food service operations in Correctional Services. He brought an Article 78 action challenging the administrative decision denying his grievance.

A State Supreme Court judge annulled the administrative determination, holding that Rausch had been required to perform out-of-title duties and the State, in turn, appealed.

Commenting that assignment of out-of-title work, other than on an emergency basis, is clearly prohibited by the Civil Service Law §61.2, the Appellate Division affirmed the lower court's ruling.

§61.2 provides that "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 Civil Service Law and the rules adopted thereunder.

Although the State contended that Rausch's duties had been modified and thus he could not be viewed as working out-of-title, the Appellate Division essentially found that Rausch was performing the duties that had been the responsibility of his former supervisor, a Correction Facility Food Administrator II, [FFA II].

The decision notes that while an FFA I is responsible for food service operations for an assigned shift, Rausch was made responsible for all food service operations at the Greene Correctional Facility, duties typically those of an FFA II, after his former supervisor was reassigned to another facility in 1991.

The Court concluded that the extension of Rausch's duties to encompass responsibility for the entire food service operation at the facility, i.e., responsibility for all food service on all shifts, seven days a week, constituted out-of-title work.

      The Muzzillo Decisions

Muzzillo and three co-workers, employed as stenographers by the Mt. Vernon City School District, complained that they were performing out-of-title work. The Mt. Vernon Civil Service Commission agreed, ruling that the duties the four were assigned justified the reclassification of their respective positions to senior stenographer.

When the District declined to reclassify their respective positions, Muzzillo and her co-workers sued.

In one action Muzzillo sought a court order directing the District to comply with the Commission's determination and reclassify their positions to Senior Stenographer or, in the alternative, to desist from requiring them to perform out-of-title work. In a second action, Muzzillo attempted to obtain a court order compelling the Commission to "enforce its determination" regarding the reclassification of their respective positions.

The Appellate Division sustained lower court rulings dismissing the petitions in both actions.

As to their law suit against the District, the Appellate Division found that the School Board, by resolution, had directed the District "to cease and desist from using [the stenographers] to perform duties inappropriate to their title." This would appear to have provided appropriate redress concerning the issue of District's assigning "out-of-title work" to the stenographers.

However, even if the Board's action did not resolve the matter to the satisfaction of the four, the Appellate Division ruled that their complaint was properly dismissed by the lower court. The Appellate Division commented that the four had failed to exhaust their administrative remedy, noting that they had not "availed themselves of the grievance procedure set forth in their collective bargaining agreement."

As to the action brought against the Civil Service Commission, the Appellate Division ruled that the School Board had acted appropriately by adopting a resolution directing the District to refrain from having the four stenographers perform out-of-title work.

The Appellate Division said that Muzzillo failed to show that the Commission is under a legal duty to enforce compliance with its determination that the four were performing senior stenographer duties. In other words, the Commission did not have any obligation to require the District to reclassify the positions merely because it found that the incumbents had been assigned to perform out-of-title work.

Although the School Board could have elected to provide for such reclassification, the Court action signals its view that discontinuing the assignment of out-of-title work is an appropriate alternative to reclassification of the positions.

The Appellate Division commented that although the Commission had urged the Board to reclassify their positions to senior stenographer, it was not required to compel the District to do so. In this regard, the Commission could exercise its discretion as to the action it would take to resolve the matter. In other words, the Commission had no legal duty to compel the reclassification of the positions in question and the fact that the School Board had acted to bar future out-of-title work constituted an appropriate resolution of the complaint.

On another point, Muzzillo had cited §§100.1.a and 102.3 of the Civil Service Law in support of her efforts to have the Commission act. §100.1.a deals with the certification of payrolls and bars the payment of salary or compensation were the responsible commission determines that an individual has been employed in violation of law. §102.3 authorizes the appropriate commission to sue to enjoin "any violation of the Civil Service Law."

Assuming, without deciding, that these provisions are relevant in these cases, apparently the Appellate Division decided that the action by School Board to prohibit further out-of-title work by the stenographers resolved the underlying issues involved.

Off duty misconduct

Off duty misconduct

People v Latanya Gray, et al., 172 Misc.2d 14

Latanya Gray, a New York City police officer, together with two co-defendants, was charged coercion, grand larceny and bribe receiving.  The three were accused of soliciting and receiving $3,000 in exchange for the promise that Gray would rescind an assault report she filed against an business owner named Daniel Leon.

Allegedly Gray had a dispute with Leon. Gray, who was not in uniform and who was not on duty at the time, summoned the police. When uniformed officers arrived at the scene, Gray told them that she was a police officer and that she wanted the officers to arrest Leon; the officers complied.

According to the ruling, when Gray was released from jail he was contacted by Andrew Johnson, Gray's cousin. Johnson allegedly said that Gray would be willing to "drop" the assault charge if Leon paid her $5,000. After some negotiation, Johnson and Leon agreed upon $3,000 as the price for dropping the charge. Later that day, Leon contacted detectives with the Internal Affairs Bureau of the New York City Police Department and enlisted their aid in the matter.

Leon gave $3,000 to Marion Kennedy while Gray was standing nearby during the exchange. The transaction was monitored by agents of the Internal Affairs Bureau, who arrested Gray and Kennedy at the scene immediately following the exchange.

Gray argued that the criminal charges filed against her were not "legally sufficient" because the charges all related to conduct "as a public servant" or "related to" or "in the nature of" her official office. She and her co-defendants contended that her agreeing to drop a complaint she made as a civilian does not render her criminally liable for the crimes with which she is charged.

The Court said that the basis for all of the charges was the abuse of power by a public servant in performing (or failing to perform) a function relating to his or her office. The judge rejected Gray's  argument that her act of making a complaint as a private citizen, then allegedly offering to withdraw that complaint in exchange for just compensation for the injury she suffered, does not constitute any of the crimes charged in the indictment.

According to the decision, "the evidence portrays Gray not as a victim seeking fair recompense, but as a manipulator and conniver who abused her authority as a police officer to coerce the complainant to pay her money because she was dissatisfied with his services. 

In addition, the Court said that the qualification urged by the Gray -- on duty status versus off-duty status -- is a distinction without a difference.

According to the Court, "[W]hile technically off-duty, in a sense, a police officer is on duty 24-hours a day. Off-duty police officers carry revolvers and are expected to and do respond to emergencies occurring in their presence whether on or off-duty."

In addition, the decision notes that courts have found that Civil Service Law §75 does not preclude imposition of discipline on a civil servant who is guilty of misconduct during off-duty hours.

Light duty assignments

Light duty assignments

Paeno v McCall, 235 A.D.2d 766

In Paeno the Appellate Division considered the impact of light duty assignments on an application for accidental disability retirement.

In December 1990 firefighter Joseph J. Paeno was injured at work. In 1992 Paeno was ordered back to work and given a "light duty" assignment. In November 1992 he filed for both accidental and performance of duty disability retirement, contending that he was unable to perform even light duty work. Both applications were rejected.

The significant issue in this decision relates to the standard to be used by the Comptroller in evaluating an application for disability retirement.

Here the Court decided that the Comptroller was not required to determine if Paeno was physically incapacitated from performing his normal duties. Rather the Comptroller was free to [and correctly] determine that the evidence failed to establish that Paeno could not perform the light duty assignments required.

The Appellate Division commented that new regulations of the Comptroller setting out new standards for evaluating disability applications were not in effect at the time the Comptroller made his determination. The Court also pointed out that the regulations were not applicable retroactively.

These  new regulations are found in 2 NYCRR 364. They provide the criteria to be used by the Retirement System insofar as the Systems considering the demands of the position in processing  an application for accidental or duty disability retirement.

Under the regulations, the System may require the employer to provide a written statement that accurately describes the actual duties performed by the applicant, together with a description of the relevant physical and, or, psychological requirements of the position. Significantly, §364.2 provides that the employer is not simply to provide the official Civil Service job description for the title of individuals if the applicant's duties and the applicant's  actual duties and the relevant job requirements are not accurately recited in the official Civil Service job description. [2 NYCRR 364.2]

Another element in the evaluation is that §364.3(a) of the regulations provides that if the applicant has been performing light, limited or restricted duties for less than two years prior to the date of his or her application for disability retirement benefits, the Retirement System will evaluate the applicant's ability to perform the job requirements of his or her regular, full duty assignment performed immediately prior the light duty assignment.

In contrast, if the applicant has been continuously assigned to light, limited or restricted duties for at least two years prior to the date of his or her application for disability retirement benefits, the evaluation is to be based on the written description of the duties and/or physical or psychological job requirements provided by the employer describing the light duty assignment.

Where, however, the applicant has performed at least 100 hours of paid overtime while on light duty during any twelve month period within the two year period prior to the filing of his or her application for disability retirement, the Retirement System will make its determination concerning on the issue of permanent incapacity on the basis of the applicant's ability to perform his or her light duty assignment.

What is the bottom line?

Under the regulations, where an individual is performing a light duty assignment at the time he or she applies for accidental or duty disability retirement benefits, the Retirement System will determine the issue of permanent disability based on:

 a. the individual's full duties of his or her position where the applicant has performed light duty for less than two years; or

b. if the applicant has performed a light duty assignment for more than two years, the issue of permanent disability will be resolved in consideration of the applicant's  actual light duty assignment.

Police officer dismissed after presenting and using false identification for self-identification

Police officer dismissed after presenting and using false identification for self-identification

Ildefonso v Bratton, 238 A.D.2d 142

One of the disciplinary charges filed against New York City police officer Gilberto Ildefonso alleged that he had brought a dog -- the precinct "mascot" -- to the ASPCA, presumably to be put to sleep. Ildefonso was accused of giving the ASPCA a false name, a false badge number and a false precinct. He also was charged with lying about the origin of the dog in documents he gave to the ASPCA concerning the animal.

Why did Ildefonso use false identification and misstate the facts? According to the Appellate Division, he did so in order "to avoid a potential unpleasantness concerning the fellow officer who owned and cared for this precinct mascot."

Found guilty, the Commissioner of Police dismissed Ildefonso from the force. The Appellate Division upheld the termination.

What was the Appellate Division's rationale in upholding the penalty imposed?

The Court said that "even if one were favorably disposed toward [Ildefonso] in connection with the other charges, the critical fact remains that [Ildefonso] lied with respect to matters of self-identification particularly important to police work and integrity."

The Appellate Division said courts give "great leeway" to the Commissioner's determination in disciplinary matters. It said that the Commissioner's decision was entitled to such great leeway in matters of police discipline and punishment because the Commissioner, and not the courts, is accountable to the public for the integrity of the Department."

Eligibility for GML 207 benefits

Eligibility for GML 207 benefits

Dearman v City of White Plains, 237 A.D.2d 603

Although William H. Dearman, a White Plains firefighter, was approved for accidental disability retirement benefits by the Police and Fire Retirement System, White Plains denied Dearman's application for General Municipal Law §207-a benefits. Dearman sued, seeking a court order compelling the City to pay him §207-a supplemental benefits.

The Appellate Division ruled that Dearman's petition was untimely, having been filed more than four months after the City had made its "final determination." Of greater significance, however was the Appellate Division's observation that the lower court was incorrect in viewing Dearman's action to be in the nature of mandamus to compel the City to perform a statutory duty.

According to the decision, the City is allowed to make its own determination as to whether Dearman was entitled to §207-a benefits and the Retirement Systems determination granting Dearman §363 disability benefits did not preclude the City from finding him ineligible for §207-a benefits. The Appellate Division noted the Court of Appeals' decision in Cook v City of Utica, 84 NY2d 833 concerning this point.