Analyzing out-of-title work grievances determinations

Analyzing out-of-title work grievances determinations
Steen v Governor’s Office of Employee Relations, 271 AD2d 738

Resolving out-of-title work disputes is not something courts typically do.

As the Appellate Division, citing Cove v Sise, 71 NY2d 910, noted in deciding the Steen case: “it is well settled that [a]dministrative determinations concerning position classifications are ... subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis."

But, said the court, where, as here, the record lacks any rational basis upon which to conclude that petitioners are not doing out-of-title work courts will intervene.

In Steen v GOER, the Appellate Division overturned a determination by the Governor’s Office of Employee Relations because it found that in this instance the comparison of petitioners’ duties with the duties of a Treatment Team Leader is inapposite -- i.e., it was neither appropriate nor pertinent to do so.

Why? Because, said the court, [a]n employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work. The Appellate Division pointed to Collins v GOER, and Kuppinger v GOER, 203 AD2d 664, as support for its ruling.

Nancy Steen had filed a grievance claiming that she and a number of co-workers were being required to perform out-of-title duties and asked that their positions be reclassified and reallocated to higher-grade positions in recognition of their assignments. After the grievance was denied at all steps of the grievance procedure, she sued.

Steen contended that she and her co-grievants were appointed to positions of Recreation Workers, SG-14, Recreation Therapists, SG-14 or Senior Recreation Therapists, (Filed Mar. 29, 2000.) SG-17 by Pilgrim State Hospital. Following Pilgrim’s instituting a new program known as the Buffalo Model, Steen contended that she and the other employees were given an in-house designation of Treatment Plan Coordinators and were assigned a specific number of patients. Steen’s basic claim: the creation of the in-house title Treatment Plan Coordinators was a subterfuge allowing Pilgrim to assign out-of-title work to them and that their new duties were consistent with the duties of a Treatment Team Leader, SG 25.

According to the Appellate Division, as Treatment Plan Coordinators, each petitioner was responsible for transcribing information from the patient’s chart to a treatment plan worksheet and also interviewing each patient and entering the information from the interview in the second section of the worksheet.

Thereafter, the treatment team met and developed the treatment plan. Steen and her co-workers were then required to conduct a review with respect to each patient after 90 days to evaluate the progress of each patient with respect to the goals and objectives in the plan devised from the worksheets.

The court’s conclusion: [t]he focus of the review should have been whether the duties are appropriate to petitioners’ titles.

Noting that the reviewing officer recognized that the duties at issue are not contained verbatim in the classification standard but concluded they were a logical extension of the responsibility of professional or para-professional members of the treatment team, the court annulled GOER’s ruling denying Steen’s grievance.

Finding that there was no support for the reviewing officer’s conclusion in the record, the Appellate Division decided that the determination did not have a rational basis.

Further, the court specifically commented that a review of a patient’s entire chart containing information from each discipline represented by the team and the interview of the patient is simply not a logical extension of petitioners’ responsibilities to fill out forms and reports concerning patients in their recreational programs.
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Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority

Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority
Source: Office of the Governor

On March 2, 2011, Governor Andrew M. Cuomo announced that he will be submitting a program bill that would expedite and expand ongoing plans to implement a statewide, objective teacher evaluation system, based on both performance and seniority, for school districts to use when making employment decisions.

The Governor noted that both the State Senate and the State Assembly have acknowledged that the New York State must move forward on improving performance in the classroom as well as improving teacher evaluations. The real question, said the Governor, is what is the alternative to "last in, first out," the current statutory standard used in layoff situations involving personnel in both the classified service and the unclassified service.

The Governor said that the current so-called "last in, first out" policy “lacks objectivity by maintaining teachers simply based on years of service without factoring in classroom effectiveness, performance, or need.”

"It is time to move beyond the so-called 'last in, first out' system of relying exclusively on seniority," Governor Cuomo said. "However, we need a legitimate evaluation system to rely upon. This will help make a statewide evaluation system ready and allow us to replace 'last in, first out.'"

According to the Governor, his proposed program bill would "accelerate the new standards to cover all grades and subjects for the 2011-2012 school year." In addition, the Governor said that his bill would set clear standards and enhanced transparency requirements, including the posting of guidelines on all school districts' Web sites. Parameters of the new teacher evaluation system include a new rating system including "highly effective," "effective," "developing," or "ineffective."

The Governor’s announcement also states that the evaluations will also play a significant role in a wide array of employment decisions, including professional development, tenure determinations, selection for leadership opportunities, and termination. Teachers and principals with a pattern of ineffective teaching or performance could be charged with incompetence and considered for termination through an expedited hearing process.

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Unfunded Mandate Relief [revised summary]

Unfunded Mandate Relief [revised summary]
Sources: NYSBA Municipal Law Section, Special Committee on Mandate Relief; Office of the Governor

On February 28, 2011 the New York State Bar Association’s Municipal Law Section’s Special Committee on Mandate Relief sent its comments* concerning the need for relief of certain mandates imposed on political subdivisions of the State, i.e., counties, cities, towns, villages and school districts, to the Governor’s Office.

The Governor’s Office reports that on March 2, 2011 Governor Cuomo accepted a preliminary report issued by the Mandate Relief Redesign Team** on ways to curb the proliferation of unfunded and underfunded mandates.

The Special Committee said that:

“Municipal officials have long been managing mandates handed down by the state government, whether the mandate is funded, under-funded or unfunded.1 As there is no uniformly accepted definition of what constitutes an “unfunded mandate,” there is no recognized, comprehensive inventory of the unfunded mandates that are placed on municipalities. Nevertheless, there are a number of laws and regulations that are universally recognized as such due to their prevalence and associated costs on municipal affairs.

“Some require that certain services or programs be offered to the public by the municipality for the benefit of the public at large. Others establish procedural or administrative parameters within which a municipality must operate, but do not provide any identifiable benefit to the municipality or the public at large. Often, this latter mandate category is designed to promote a legislatively determined public policy of the state, benefiting a narrow class of individuals, at the cost of the municipality. It is from this latter category of mandate that the need for fiscal relief is greatest”.

Noting that its comments “are not intended to question the validity or wisdom of the various public policies underlying mandates; rather, these comments are intended to identify those mandates that have the greatest impact on municipal expenses and to highlight the inequity of having municipalities bear the financial burden of carrying out these policies.”

The Special Committee addressed the following issues:

Disability Benefits for Law Enforcement and Firefighters (GML §§ 207-c; 207-a)

Public Pensions

Wicks Law (Gen. Mun. Law 101)

Prevailing Wage (Labor Law § 220)

Triborough Amendment to the Taylor Law [Civil Service Law § 209-a.1(e)]


The Mandate Relief Redesign Team details findings in three key areas.

First, its report addresses reform and redesign the current system to stop the proliferation of unfunded mandates by:

1. Prohibiting New Unfunded Mandates: Permanently fix the problem of unfunded mandates by advancing a state law and eventual constitutional amendment prohibiting any new state mandate (with very limited exceptions) on local governments or school districts unless the state fully funds the mandate or the local entity votes to comply with the mandate;

2. Requiring Independent Cost Analysis of Mandates: Strengthen the currently ineffective fiscal impact statement process by requiring legislative fiscal committees to determine the need for and prepare such statements. This would involve codifying Executive Order 17's fiscal impact statement methodology and local government consultation requirements and making the reports available to the public; and

3. Enforcing Limits on Unfunded Mandates: Using existing resources, establish an Office of Mandate Reform to act as a clearinghouse that will work with local governments and state agencies to address unfunded mandates.

Second, its report addresses cost-drivers to provide meaningful mandate relief by:

1. Creating a Pension Tier 6: A new Tier will help municipalities and school districts address rapidly escalating pension costs; and

2. Avoiding the Wicks Requirement by Removing Barriers to Project Labor Agreements: In order to reduce the costs that localities and schools face due to Wicks, ease the burdens associated with project labor agreements (PLA) by eliminating the study requirement and developing regionally-negotiated PLA templates that together can reduce the costs of public works projects by 15 percent or more.

Third, its report addresses the current unsustainable burden of state mandates by:

1. Giving Local Governments Greater Flexibility to Administer Existing Mandates: The State Administrative Procedure Act (“SAPA”) §204-a should be streamlined and expanded to allow localities to propose alternatives to current regulations and to request waivers of regulations; and

2. Conducting a Comprehensive Review of All State Mandates: Conduct a full agency review and accounting of state and regulatory mandates that burden school districts and local governments.

* A complimentary copy of the Special Committee’s report is available from NYPPL. E-mail your request to publications@nycap.rr.com

** The Mandate Relief Redesign Team report is posted at: http://governor.ny.gov/assets/documents/finalmandate.pdf .
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