Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties

Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties

Cribbin v New York State Unified Ct. Sys., 2013 NY Slip Op 01548, Appellate Division, Second Department

Patrick Cribbin file an Article 78 petition seeking an order compelling the Chief Administrative Judge of the Courts of the State of New York to reclassify an certain New York State Court Officer-Major I (Judicial Grade-26) employees to the title of New York State Court Officer-Major II (Judicial Grade-28).

The Appellate Division reversed a Supreme Court ruling that granted the petition [as amended] and remitted the matter to the Chief Administrative Judge of the Courts of the State of New York for further proceedings.

The court said that when a position classification decision is made "[t]he courts have the power to reverse or modify a particular classification . . . [only] if it is wholly arbitrary or without any rational basis," citing Association of Secretaries to Justices of Supreme and Surrogate's Courts in the City of New York. v Office of Court Administration of the State of New York., 75 NY2d 460 and other decisions.

The Appellate Division explained that “So long as the classification determination has a rational basis, a court may not disturb it even if there are legitimate grounds for a difference of opinion.” 

As the record established a rational basis for the distinction between the positions of  Major I and Major II, even though there was some overlap in duties, the court concluded  that the additional managerial duties assigned incumbents of Major II positions provided a rational basis for distinguishing between the two positions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01548.htm

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The Appellate Division affirmed a Supreme Court’s denial of an Article 78 petition seeking to annul the determination of Waterfront Commission of New York.

Among the addressed by the Appellate Division concerning the admission of hearsay statements in the course of the proceeding and petitioner’s inability to cross-examine a witness alleged to have made statements to the detriment of the petitioner.

As to the issue concerning hearsay evidence, the Appellate Division ruled that “The admission of hearsay statements at the administrative hearing did not violate petitioner's due process rights to a fair hearing or cross-examination.” The court explained that “It is well established that ‘[h]earsay evidence can be the basis of an administrative determination,’" citing Gray v Adduci, 73 NY2d 741.

The court also noted that in addition to the challenged hearsay testimony, the Commission presented testimony that corroborated the hearsay testimony.

With respect to the issue concerning the petitioner’s inability to cross-examine an individual who made statements implicating him because the individual ignored a subpoena issued by the Administrative Law Judge, the Appellate Division said that this did not require a different result. In the words of the court: “The fact that the subpoena may have been ignored was not the fault of [Commission] or the [Administrative Law Judge…” as the target of the subpoena was incarcerated at the time.

The court noted that the petitioner was able to cross-examine the live witnesses, and good cause was established for the failure to produce the subpoenaed witness at the hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01496.htm

A town council member may not simultaneously serve as the town's financial operations manager

A town council member may not simultaneously serve as the town's financial operations manager

Informal Opinions of the Attorney General 2013-01

A town asked for the Attorney General’s opinion as to whether the positions of town council member and town financial operations manager or, alternatively, director of finance, can be held by the same person.

The Attorney General concluded that such positions may not be held by the same individual, explaining that  because of the town board's responsibility to oversee the Town's fiscal operations, a council member should not simultaneously hold the position of financial operations manager or director of finance.

The opinion notes that the Attorney General has repeatedly expressed the view that one person cannot serve as both a member of a local government's governing body and in a subordinate second position for the same local government.

The fundamental concept regarding such incompatibility: one person cannot be both the supervisor and the supervised [see People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874)]

The Informal Opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-1_pw.pdf