Out of title work assignments

Out of title work assignments

Murphy v Herik, NYS Supreme Court [Not selected for publication in the Official Reports]

Out-of-title work usually refers to an employer assigning an individual to perform the duties of the incumbent of different, typically higher level, position. Section 61.2 of the Civil Service Law provides that:

Prohibition against out-of-title work. 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 provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

Many collective bargaining agreements require that if the employer assigns an individual to perform "out-of-title" work for more than a designated period of time, he or she is to be compensated at the appropriate pay level of the higher position.

Detailing is used to describe a form of assigning an individual to perform "out-of-title" frequently encountered in law enforcement organizations. Its most common manifestation: assigning a police patrol officer to perform the duties of a detective or investigator. Officers detailed to perform the duties of a detective or an investigator typically are not permanently appointed to the position. Section 58.4.c(ii) of the Civil Service Law was enacted to address this practice and provides that:

In any jurisdiction, other than a city with a population of one million or more, which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation.

By its terms, Section 58.4.c(11) does not cover New York City police officers. However, Section 14-103(b)(2) of the City's Administrative Code tracks Section 58.4.c[ii] and provides that a "permanent police officer who temporarily perform the functions of what is otherwise considered to be detective work for periods of 18 months or more are to be appointed as detectives and be compensated as such."

Michael Murphy, a New York City police officer, was assigned to the Harbor Unit, Vessel Theft Team. His duties included the investigation of stolen marine equipment; returning stolen property to its rightful owner and maintaining a working relationship with insurance companies for the purpose of identifying insurance fraud. After he had been performing these duties for over three years, Murphy's commanding officer, John Cassidy, recommended that Murphy be appointed to third-grade detective. Cassidy's justification for his recommendation: Murphy's primary responsibilities were those of a detective.

The Department rejected Cassidy's recommendation and Murphy filed a grievance challenging its decision. The Department denied Murphy's grievance and he commenced an Article 78 proceeding in March of 2001 seeking a court order directing his appointment as a detective.

The Department asked the court to dismiss Murphy's petition. It contended that its rejecting Murphy's appointment as a detective was justified because the Harbor Unit was specifically excluded from the career-path for detective by a lawful Department policy. Accordingly, the Department argued, Murphy can not be deemed to have been performing detective work as part of the Harbor Unit and therefore he was not eligible for appointment as a detective pursuant to Section 14-103(b) (2) of the Code.

The Department also contended that Murphy was aware of the fact that the Harbor Unit was not on the career path for detective when he accepted the assignment.

Murphy, on the other hand, contended that he was eligible for appointment as a detective pursuant to the Code, citing Ryff v Safir, 264 AD2d 349, as authority for this claim. In Ryff, the Appellate Division ruled that the fact that the Harbor Unit was not included in the Department's career-path for detective did not exempt it from the provisions of Administrative Code Section 14-103(b)(2).

Supreme Court Justice was to prevent the department rejected the Department's argument that appointment as a detective does not depend on the actual work performed but rather on whether or not the position is on the career path for detective. Justice Madden said that the legislative intent in both Section 58.4 of the Civil Service Law and Section 14-103(b)(2) of the City's Administrative Code "was to prevent the department, for budgetary reasons, from using non-detective track officers in detective track positions, while denying the officers the benefit of those positions."

In effect, the court decided that the Department's justification for its action placed form over substance. As Murphy's duties were substantially similar to that of detective, Justice Madden ruled that Murphy was entitled to appointment as a detective pursuant to Section 14-103(b)(2). Justice Madden pointed out that there was no dispute concerning Murphy's performing criminal investigative duties, noting that Murphy was awarded "Investigator of the Year" from the International Association of Marine Investigators.

Deciding that Department's ruling that Murphy was precluded from being appointed as detective simply because his position was not included in its designated "career path" for detectives was arbitrary and capricious, Justice Madden granted Murphy's petition and, in addition, ruled that Murphy was entitled to compensation as a detective beginning 18 months subsequent to his original appointment to the Harbor Unit.

The lesson of the Murphy decision is that employees may not be required to perform out-of-title duties except in cases involving a temporary emergency. If they are assigned, or permitted, to perform out-of-title duties when there is no temporary emergency, the employer may be held liable to pay any resulting salary differential.

One of the administrative procedures available to an individual who believes that he or she is being to required to perform higher level "out-of-title" work is to request that his or her position be reclassified to the higher level title -- i.e., a position allocated to a higher salary grade.

This is usually accomplished by filing a request for reclassification of the position with the responsible civil service commission or department.

The employer, also, may initiate a request for reclassification of a position. In some cases, the employer and the employee may file a "joint" application to have the position reclassified. Concerning a related point, classification and reclassification of a position focuses on the duties of a position while allocation or reallocation of a position is concerned with placing the position in the proper pay grade or setting its appropriate salary rate.

However, approval of an "out-of-title" reclassification application does not mean the individual has the right to be continued in the reclassified title. If a position in the competitive class is reclassified, the individual will have to qualify for permanent appointment to the new title by examination, despite the fact that he or she had been "performing the duties of the higher level position" and was instrumental in having it reclassified. The same applies with respect to qualifying for appointment to a higher level position in the noncompetitive class following reclassification of the lower level position.

In some instances this could result in the individual's being "reclassified out of his or her job." Some modest protections, however, may be available to the individual whose position has been reclassified to avoid this result, at least temporarily. For example, insofar as "employees of the State" are concerned, the State Civil Service Commission's Rules, [4 NYCRR 4.1(d) provide that:

A promotion eligible list shall not be certified for filling a permanent vacancy created by upward reclassification of a permanently encumbered position where promotion from such list would require the layoff of a permanent employee or the reassignment of a permanent employee to a different geographical location; but this provision shall not apply if the incumbent whose position was reclassified has, following such reclassification, twice failed to qualify for promotion to the reclassified position.

4 NYCRR 4.1(e) which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides similar protections with respect to the certification and use of an open competitive eligible list.

Many municipal civil service commissions have adopted similar rules.*

In another New York City Police Department [NYPD] "service as a detective" case, Finelli v Bratton, 298 A.D.2d 197, the issue was whether it was arbitrary and capricious for NYPD to determine that service by former Transit Authority [TAPD] police officer Nicholas G. Finelli did not qualify as "detective track" service.

According to the decision, such credit was properly denied since it was not established that Finelli performed investigative duties comparable to those performed in units given a detective track status after the TAPD's merger with the NYPD. In addition, the court said that detective track credit was properly refused for periods during which police officers were suspended from duty or on restricted, limited or modified duty.
 

* The Rules of the State Civil Service Commission specifically provide that "[e]xcept as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service” [4 NYCR 1.1]. However, rules adopted by a local commission or personnel officer are subject to the approval of the State Civil Service Commission [see generally Civil Service Law §20].

Political activities and public employment

Political activities and public employment

Davis v City of New York, USDC, SDNY, Judge Scheindlin

Election years often produce cases involving a public employee in the classified service seeking election to political office and the impact of federal and state law upon such efforts. Often the issue concerns the individual's right to continue as an employee while campaigning for such office. In the Davis case, the court also considered the liability of the employer that violates an individual's rights in such a situation.

One election-related statute is the federal Hatch Act [5 USC 1501]. The Hatch Act attempts to insulate the civil service from the influence of partisan politics. The Act requires, among other things, that state and municipal employees responsible for administering federal funds abstain from participating in partisan political activities, including running for office in a partisan election.

How is a partisan election defined? An election is partisan where the candidate is running as a representative of a political party whose presidential candidate received electoral votes at the preceding presidential election.

The Davis case involved a number of state and federal issues concerning a public employee running for elective office.

James Davis, a New York City police officer was on the 1998 Liberal Party "petition slate" for the upcoming November election. He "conducted a minimal campaign." On November 3, 1998, his name was listed on the election ballot as the Liberal Party's nominee for Member of the State Assembly. The next day the Department dismissed him, stating that it had terminated Davis "for violating a law that prohibits police officers from accepting a political party's nomination without resigning their commission." citing Chapter 49, Section 1129 of the New York City Charter.*

Significantly, the Police Department did not cite the Hatch Act in its defense, presumably because Davis was not involved in the administration of federal funds.

In another case involving the Hatch Act, the individual seeking elective office was a postal worker. In Merle v United States, USDC DNJ, Civ. 02-3469, a federal district court judge upheld the Act's prohibition on federal workers continuing in service while running for elective officer. US District Court Judge Joseph Irenas ruled that the Hatch Act did "not prevent ... participation as a candidate ... but instead constitutes a valid attempt on the part of Congress to insulate public employees from partisan political influence."

Judge Irenas held that the Hatch Act did not require Merle to quit his job to appear on the ballot but merely forces him to choose between his job and elective office. According to the ruling, the individual "need not even resign from his position in order to appear on the ballot, as the burden is upon the government to respond to his candidacy with a sanction for removal or suspension."

In Davis' case, the New York City Police Department "responded to his candidacy" by removing him from his position pursuant to the mandates of the City's Charter.

Davis subsequently asked to be reinstated to his former position because, as it turned out, he was never actually a bona fide nominee for elective office. Why not" Because he had not filed the required certificate accepting the nomination.

The Board of Elections confirmed this fact by writing the Department that it had included Davis' name on the ballot in error. Still the Department refused to reinstate Davis and he sued. About a year later New York State Supreme Court Justice Barbara R. Kapnick ruled that Davis had not violated Section 1129 and "ordered that the Police Department reinstate Davis as a police office forthwith with back pay."

Davis, however, continued to press his federal civil rights law suit, claiming that the Department's initial refusal to reinstate him was a violation of his rights under 42 USC 1983 and, in addition, had retaliated against him by refusing to reinstate him when it learned of his "non-candidacy" in violation of 42 USC 1983 because:

1. He had challenged the Democratic incumbent, Clarence Norman, in a primary election the summer of 1998;

2. He had criticizing the Police Department for police brutality over the years; and

3. He had spoke out on issues of public concern.

Although Davis won a $100,000 jury verdict for damages, Federal District Court Judge Scheindlin set it aside. Judge Scheindlin said that although Davis showed that his constitutional rights were, indeed, violated, he did not prove the second element required for him to prevail: that the unconstitutional act was the result of a "policy" or "custom" of retaliation in the agency.

Judge Scheindlin explained that "municipalities such as the City of New York may only be held liable when the city itself deprives an individual of a constitutional right." Thus, ruled the court, in order for an individual deprived of a constitutional right to have recourse against a municipality under 42 USC 1983, he or she must show that he or she was harmed by a municipal "policy" or "custom," citing Monell v New York City Department of Social Services, 436 US 658. Judge Scheindlin also noted that "[a] municipality may not be held vicariously liable under Section 1983 on the basis of its employer-employee relationship with the employee" because "a municipality may not be held liable on a theory of respondeat superior."

* Section 1129 provides that "Any ... member of the police force ... who shall during his or her term of office be nominated for any office elective by the people ... and shall not, within ten days succeeding same, decline the said nomination, shall be deemed thereby to have resigned his or her commission and to have vacated his or her office

PERB rejects improper practice charge filed by a non-public employee

PERB rejects improper practice charge filed by a non-public employee

Nagy and SUNY at Buffalo, 35 PERB 3025.

PERB declined to assume jurisdiction to consider an individual's improper practice charge alleging the employer violated Sections 209-a.1(a) and 209-a.1(c) of the Civil Service Law because the individual was not a public employee within the meaning of the Taylor Law, observing that the individual was not on a state payroll and had neither paid union dues nor paid an agency fee to the collective bargaining unit's representative. Nagy and SUNY at Buffalo, 35 PERB 3025.

Similarly, in Arce and NYC Board of Education, 35 PERB 4576, a PERB Administrative Law Judge determined that SEIU Local 74 did not violate its duty of fair representation by failing to process a grievance filed by an individual independently hired by, and who worked directly for, a public school custodian because the individual was not a public employee as defined by the Taylor Law and thus he was not in the negotiating unit.

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Matter of Zembiec v County of Monroe, 2011 NY Slip Op 06757, Appellate Division, Fourth Department

Thomas C. Zembiec asked Supreme Court to annul the Monroe County Sheriff's Department decision to discontinue his General Municipal Law §207-c for the period from August 12, 2008 through June 15, 2009 after if it determined he was not entitled to such disability benefits. In addition, Zembiec challenged the Department’s suspending his regular salary from June 15, 2009 through March 25, 2010. The Department argued that Zembiec was not entitled to such payments because he failed to report for his light duty assignment when directed to do so.

The Appellate Division summarized the benefits provided by General Municipal Law §207-c to law enforcement personnel injured in the performance of their official duties as follows: Such personnel injured in the performance of his or her duties or who has become ill as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment is entitled to specified benefits. The statute does not require that a qualified employee demonstrate that his or her disability "is related in a substantial degree" to the employee's job duties and the individual need only prove a direct causal relationship between job duties and the resulting illness or injury to qualify for such benefits.

The Court held that Supreme Court “properly concluded that the denial of [§207-c] benefits for the period from August 12, 2008 to June 15, 2009 was arbitrary and capricious” as Zembiec had established “the requisite direct causal relationship between his job duties and his resulting illness ….”

On June 15, 2009 Zembiec, however, failed to report for a modified duty assignment. As §207-c(3) provides for termination of benefits upon an employee's refusal to return to work to perform a light duty assignment "consistent with his status as [an officer]," the Appellate Division ruled that Supreme Court was incorrect in granting that portion of Zembiec’s petition seeking his “regular pay” for the period June 15, 2009 through March 25, 2010, finding that Zembiec did not have any right to his regular pay after he failed to report to work to perform his light duty assignment.

The Appellate Division contrasted an individual’s right to §207-c payments in cases where the individual “avails himself [or herself] of due process protections by challenging the medical examiner's determination [that he or she is qualified for light duty or is qualified to resume his or her regular assignments] as such a challenge cannot be equated with a refusal to return to duty" to a refusal to report to work, either light duty or regular duty, after he or she is unsuccessful in challenging the medical examiner’s determination.

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Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings

Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings 

OATH Index No. 2526/11; OATH Index No. 2047/11

Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioner to state a viable claim. The burden is particularly high in employee disciplinary proceedings where the OATH Administrative Law Judge makes recommended findings that are submitted to the referring agency for final action. ALJ Alessandra F. Zorgniotti denied in part without prejudice an employee’s pre-trial motion to dismiss disciplinary charges as pre-mature where the employee stated in her reply papers that there were issues of fact to be determined at trial. The motion was also denied in part based on a finding that OATH has jurisdiction to hear a disciplinary case referred by the Department of Correction. In addition, the ALJ granted in part and denied in part without prejudice a request for subpoenas for witnesses, some of whom would provide cumulative and irrelevant testimony [see Dep’t of Correction v. LaSonde (in PDF), OATH Index No. 2526/11]. 

Similarly, OATH ALJ Faye Lewis denied a pre-trial motion to dismiss disciplinary charges brought against a marine engineer on the ground that the charging agency failed to comply with its own rule requiring a disciplinary complaint to be accompanied by a sworn statement from the complainant. Pleadings are liberally construed in administrative practice. Technical defects in pleading are deemed harmless absent a showing of prejudice, which was not made out here. Further, respondent’s objection was untimely as it was not made until more than a year after he received the charges. ALJ Lewis also denied respondent’s motion to stay his disciplinary hearing indefinitely until a federal suit he filed against the charging agency is decided [see Fire Dep’t v. Domini (in PDF), OATH Index No. 2047/11].

Rejecting a hearing officer’s findings

Rejecting a hearing officer’s findings

Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.

It is well settled that an appointing authority may reject a Civil Service Law Section 75 hearing officer's finding of fact and penalty recommendation provided that the appointing authority's determination is supported by substantial evidence in the record and that the penalty imposed does not "shock one's sense of fairness."

The Perfetto case demonstrates how important it is for the appointing authority to specify the reasons for its rejection of all or a portion of the hearing officer's findings and recommendation.

Louis Perfetto, an employee of the Erie County Water Authority, was charged with three acts of misconduct, all related to absences from work. The first two charges concerned an absence in November of 2000 and Perfetto's alleged failure to provide proper documentation regarding that absence. Because the parties had entered into this settlement agreement concerning the first two charges in December 2000, the Hearing Officer ruled that this settlement precluded considering these two charges in the then current disciplinary action.

The third charge related to Perfetto's alleged misuse of sick time on March 27, 2001. While Perfetto claimed he was sick on March 27, there was evidence in the record establishing that Perfetto had left his home that morning to have a document notarized. The Hearing Officer concluded that the fact that Perfetto left his home on that date did not, in and of itself, "belie [his] claim that he was sick."

The appointing authority, however, rejected the Hearing Officer's findings of fact and recommendation. Although the appointing authority stated that Perfetto's testimony was "disproved by independent sources" in its decision, it failed to cite anything in the record to support this determination.

Insofar as the first two charges were concerned, the Court agreed with the hearing officer, concluding that any consideration of those charges by the appointing authority constituted an error of law because of a binding settlement had previously been reached regarding the acts underlying the charges.

As to the third charge, the court concluded that the employer's determination was arbitrary and capricious to the extent that the appointing authority failed to set forth any findings of fact supported by substantial evidence in the record to bolster its conclusion. Perfetto was awarded his job back, along with lost wages and benefits.

Substantial evidence is not a difficult burden to meet. The Appellate Division has defined substantial evidence as enough evidence that a” reasonable mind may accept as adequate to support a conclusion."

This definition of substantial evidence allows for different conclusions based on the same evidence, as long as a reasonable person could arrive at same conclusion that the finder of fact did.

Nevertheless, it is vital that in any final decision, whether it is in agreement with the hearing officer's findings of fact or not, that the appointing authority spell out its reasoning and in the event it rejects any or all of the hearing officer's findings, that specific reasons for the rejection be given and that such reasons be supported by substantial evidence in the record. To do otherwise, as the Perfetto case demonstrates, could be fatal to the appointing authority's determination.

In contrast, the individual's entire personnel record, including past disciplinary actions that "were settled" may be considered by the hearing officer in the context of a disciplinary action for the purpose of setting an appropriate penalty provided the individual is advised that his or her personnel records will be so considered and is given an opportunity to rebut any information in that file.

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

 Mack v The Port Authority of New York and New Jersey, USDC, SDNY, Judge Swan

One of the issues considered by Judge Swan in the Mack case was Michael Mack's allegation that he was subjected to disparate treatment in violation of Title VII because he was an African-American. Mack alleged that he was required to submit to an involuntary random test for illegal drugs because of his color. Mack also claimed that after he submitted to a random drug test and tested positive for cocaine, the Authority told him that he would be terminated.

According to the decision, Mack was employed as a truck driver by the Authority and was required to posses a valid commercial driver's license in order to perform the duties of his position. Authority employees such as Mack are required to submit to random drug tests under the federal Omnibus Transportation Testing Act of 1991.

On July 6, 1996, Mack was tested for drugs and tested positive for cocaine. Mack and the Authority settled the matter by entering into an agreement that required Mack to submit to random drug testing for a period of sixty months and to enter a drug rehabilitation program. The agreement also provided that if Mack tested positive again, he would be subject to "administrative action."

When Mack again tested positive for cocaine on November 10, 1997, the Authority told him that his employment would be terminated effective November 17, 1997, because of the positive drug test.

Mack's union negotiated a second "disciplinary waiver agreement" and Mack agreed that he would be subject to random drug testing for sixty months and that he would cooperate with the Port Authority's Office of Medical Services. The agreement also stated that Mack's failure to comply with these obligations could result in his termination and that one positive test result would result in his termination.

On May 6, 1998, Mack was asked to submit a urine sample to the Medical Services nurse. When the sample provided proved "unusable," he was asked to supply a second sample. Mack refused to do so and, as a result of this refusal, he was terminated.

Judge Swan granted the Authority's motion to dismiss the complaint, commenting that Mack failed to allege facts sufficient for the court to find that it was the custom or practice of the Port Authority to treat him or other non-white employees differently from non-black employees when imposing sanctions for failure to pass a urine test for illegal drugs.

According to the ruling, Mack presented only conclusory allegations that "race was the determining factor in [his] termination" and thus failed to establish a prima facie case of "wrongful termination."