Betzler v. Carey

— Appeal from a judgment of the Supreme Court at Special Term (Fischer, J.), entered March 22, 1982 in Chemung County, which converted petitioners’ proceeding, brought pursuant to CPLR article 78, into an action for declaratory judgment as it pertained to some petitioners and directed respondents to pay over salary withheld from petitioners. Petitioners are teachers, nurses, pharmacists, secretaries, and other civilian employees at the Elmira Correctional Facility who did not work during a strike by correction officers at the facility in 1979. Following the strike, each petitioner received a notice of a determination of participation in the strike in violation of subdivision 1 of section 210 of the Civil Service Law. Petitioners filed objections to these determinations, explaining that their absences were caused by legitimate reasons, mainly inability to cross the correction officers’ picket line. Nonetheless, two days’ pay for each day of absence during the strike was deducted from each petitioner’s paycheck, pursuant to section 210 (subd 2, par [g]) of the Civil Service Law. Subsequently, some petitioners were exonerated of charges of participation in illegal strike activity, and the others were determined to require hearings.^[1] The exonerated petitioners, however, were refunded only one day’s pay for each two days’ pay deducted. Petitioners then brought this article 78 proceeding, seeking refund of the full amount deducted from their salaries. Special Term converted the proceeding to an action for declaratory judgment for those petitioners for whom hearings were pending, and held that exonerated petitioners were entitled to a refund of the full amount withheld pursuant to section 210 (subd 2, par [g]) of the Civil Service Law. Respondents have appealed. When a public employee has not worked on the date of an illegal strike, the employee is presumed to have engaged in the strike, and twice his pay may be deducted from his salary for each day he was thus determined to be illegally on strike (Civil Service Law, § 210, subd 2, pars [b], [g]). On this appeal, respondents erroneously contend that when such an employee subsequently is exonerated, respondents should only be required to refund one day’s pay for each day of absence from work and should be allowed to retain the other day’s pay deduction as an ordinary deduction for time not worked. In Matter of Committee of Interns & Residents v New York City Health & Hosps. Corp. ( 55 NY2d 754 , affg on opn below 80 AD2d 807 ), the First Department recently held that a deduction could not be justified as an ordinary deduction for time not worked where the evidence indicated that such deduction was treated by respondents as a Taylor Law sanction. In Matter of Committee of Interns, “the entire panoply of Taylor Law procedures” ( 80 AD2d