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Dec 30, 2011

Out of title work

Out of title work
Rausch v Pellegrini, Appellate Division, 237 A.D.2d 771
Muzzillo v Mt. Vernon Civil Service Commission, 238 A.D.2d 424
Muzzillo v Mt. Vernon City School District, 238 A.D.2d 425

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 Case


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 Section 61.2, the Appellate Division affirmed the lower court's ruling.

Section 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 Case

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 Sections 100.1.a and 102.3 of the Civil Service Law in support of her efforts to have the Commission act. Section 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. Section 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.

Public policy considerations affecting arbitration

Public policy considerations affecting arbitration
Sullivan County v Sullivan County Employees Asso., 235 A.D.2d 748

One of the issues in this appeal heard by the Appellate Division concerned Sullivan County's claim that the arbitration of a grievance as demanded by the Sullivan County Employees Association violated of "public policy considerations" and should be stayed.

The Association had demanded arbitration when the County denied a grievance based on the Association's claim that its action modifying a Taylor Law contract with another collective bargaining unit had triggered the "parity clause" in its agreement. The "parity clause" provided that if another bargaining unit negotiated a salary increase, those increases would be operative for employees covered by the agreement.

The Appellate Division said that to invoke a violation of public policy as justification for staying arbitration, "the violation must amount to the equivalent of a gross illegality." Although Sullivan County claimed that "parity clauses" were illegal, the Appellate Division noted that "such clauses are not per se invalid but require a case-by-case analysis."

The Courts indicated that the matter was not yet ripe for judicial consideration, commenting that if "the arbitrator's interpretation of the agreement may offend public policy, such a potential does not mandate a stay of arbitration." Rather, said the Court, if that turns out to be the case, the remedy is vacatur (reversal) of the award.

Dec 29, 2011

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.
Matter of Matter of Hastings v City of Sherrill, 2011 NY Slip Op 09484, Appellate Division, Fourth Department

The City of Sherrill’s Chief of Police, James T. Hastings, was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was involved with "person(s) notoriously suspected of illegal activities … outside [the Chief’s] official duties." The Chief was found guilty of the charges and was terminated from his position.

The person suspected of “illegal activities” with whom the Chief was “involved” was the Chief’s 29-year-old son.

The Appellate Division, sustaining the City’s determination, ruled that the departmental regulations that the Chief was found to have violated “did not impermissibly interfere with his constitutionally protected right of intimate association.” Citing Morrisette v Dilworth, 59 NY2d 449, the court said that "[I]t is well established that it is within the State's power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right."

The court also commented that “in light of the age of Chief’s son and the absence of any evidence that his son was mentally incapacitated, this case does not involve the constitutionally protected interest in custodial relationships between parents and their children.”

Other decisions in which a police officer was served with administrative disciplinary charges alleging he or she had  associated with persons alleged to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328 and Delgado v Kerik, 294 A.D.2d 227.

The Hastings decision is posted on the Internet at:

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.
Matter of Matter of Hastings v City of Sherrill, 90 AD3 1586

The City of Sherrill’s Chief of Police, James T. Hastings, was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was involved with "person(s) notoriously suspected of illegal activities … outside [the Chief’s] official duties." The Chief was found guilty of the charges and was terminated from his position.

The person suspected of “illegal activities” with whom the Chief was “involved” was the Chief’s 29-year-old son.

The Appellate Division, sustaining the City’s determination, ruled that the departmental regulations that the Chief was found to have violated “did not impermissibly interfere with his constitutionally protected right of intimate association.” Citing Morrisette v Dilworth, 59 NY2d 449, the court said that "[I]t is well established that it is within the State's power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right."

The court also commented that “in light of the age of Chief’s son and the absence of any evidence that his son was mentally incapacitated, this case does not involve the constitutionally protected interest in custodial relationships between parents and their children.”

Other decisions in which a police officer was served with administrative disciplinary charges alleging he or she had  associated with persons alleged to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328 and Delgado v Kerik, 294 A.D.2d 227.

The Hastings decision is posted on the Internet at:

Employer may recover tuition costs after teacher did not return from a paid sabbatical leave

Employer may recover tuition costs after teacher did not return from a paid sabbatical leave
Trumansburg Central School District v. Chalone¸ 87 A.D.2d 921

In the Trumansburg Central School District case the Appellate Division agreed that the District could recover the salary paid to an employee during a sabbatical leave when the employee failed to return as agreed.

In a similar situation, the State Comptroller ruled that a Village may adopt a resolution requiring employees who are sent to schools for specialized training at the Village’s expense in order to qualify for a promotion to reimburse the Village for the cost of such training if they resign within a specified period of time (Op. St. Comp. 82-4).           


Stopping the hearing creates a problem

Stopping the hearing creates a problem
Swanteson v. City School District of the City of New York, 88 A.D.2d 907

A person serving as a hearing officer may be tempted to terminate or “shorten” a hearing because one or more of the participants becomes unruly or abusive.

A hearing officer did stop the hearing before the employee had an opportunity to make a “statement” specifically permitted by the controlling rules of procedure because of “personal vituperation and ... abrasive behavior, despite repeated warnings.”

The hearing officer then sustained the employee’s unsatisfactory service rating, which was later affirmed by the Chancellor of the Board of Education.

Swanteson sued, arguing that the Board had failed to follow its own procedures.

The Appellate Division agreed and reversing a lower Court, holding that the failure to provide Swanteson with the “Review Format” was an abuse of the chairperson’s discretionary powers to make necessary “adjustments” in the format and insure an “expeditious and non-repetitious presentation ... denied (Swanteson) a substantial right.”

The matter was then sent back to the District with instructions that Swanteson “be given the opportunity to exercise his right to make a presentation and statement on his own behalf as provided in the Review Format.”

The termination of a hearing because of “disruptive behavior” apparently will not be considered a reasonable and proper exercise of discretion.

Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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