Authority to hear a disciplinary appeal

Authority to hear a disciplinary appeal
Pierino v Brown, 281 A.D.2d 960

The issue in the Pierino case concerns the proper forum to consider a disciplinary appeal.

John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.

The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.

Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.

The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.

What was the basis for the court's action? The Appellate Division ruled that the issue of “substantial evidence” that formed the basis of Pierino's appeal is raised only if an administrative hearing is “required by law.” In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:

Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate. Consequently, the proceeding was erroneously transferred to this Court.

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”.