Kent v. Cuomo

Appeal from that part of a judgment of the Supreme Court (Teresi, J.), entered June 18, 2013 in Albany County, which partially dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to, among other things, review

Petitioners Michael Ufko, Hugh Cirrito, Joan Bobier and Heide-Marie Dudek (hereinafter collectively referred to as petitioners) are state workers employed, respectively, by respondents Department of Transportation, Department of Environmental Conservation, Department of Health, and Division of Homeland Security and Emergency Services (hereinafter collectively referred to as the employer respondents). Petitioners serve in positions that are categorized as ineligible for overtime compensation (see generally 9 NYCRR 135.2). Respondent State Budget Director has discretionary authority to grant overtime compensation to such employees when they “work beyond a normal workweek during ... an extreme emergency” (Civil Service Law § 134 [6]). In October 2012, the Budget Director acted pursuant to that authority by issuing a bulletin (hereinafter bulletin G-1034) that declared Hurricane Sandy to be an extreme emergency and authorized overtime compensation for otherwise ineligible employees who worked more than 47.5 hours in a week as a result of the storm. Petitioners worked more than 40 hours per week as a result of Hurricane Sandy, but pursuant to bulletin G-1034, they were not compensated for weekly hours greater than 40 and less than 47.5.

Petitioners — together with petitioner Susan M. Kent, the president of petitioners’ labor union — commenced this proceeding arguing that the Budget Director was statutorily required to compensate petitioners and all other similarly situated state employees for all hours worked more than 40 per week as a result of Hurricane Sandy. As pertinent here, Supreme Court partially dismissed the application to the extent that it sought to require this 40-hour threshold. Petitioners and Kent appeal.

Initially, we must determine whether the Budget Director’s interpretation of Civil Service Law § 134 (6) is entitled to deference. This Court will defer to the governmental agency responsible for the administration of a statute when interpretation of the language at issue requires the agency’s expertise in the matters covered by the statute, but will accord no such deference when “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451 , 459 [1980]; accord Matter of New York State Superfund Coalition, Inc. v New York State Dept. of Envtl. Conservation, 18 NY3d 289 , 296 [2011]; see Matter of New York Constr. Materials Assn., Inc. v New York State Dept. of Envtl. Conservation, 83 AD3d 1323 , 1325 [2011]). Although the Civil Service Law provides

Following the enactment of Civil Service Law § 134 (6), respondent Division of the Budget (hereinafter DOB) issued a bulletin stating that “[e]mployees normally ineligible to be compensated for work in excess of 40 hours per week may, under special emergency circumstances, be made eligible for compensation for such hours of work” and, in order to receive such compensation, “must work a number of hours clearly in excess of the hours his [or her] position should reasonably require” (1974 NY St Div of the Budget Bulletin Item G-140). The 47.5-hour threshold is not referenced in this bulletin, but a DOB official averred by affidavit that it has been in place for many years and was originally devised after consultation with other agencies involved in emergency planning and service delivery based upon such factors as the importance of delivering emergency response services to citizens, fair treatment of otherwise ineligible employees, and responsible use of taxpayer resources. The DOB official noted that overtime-ineligible state employees — who are typically highly compensated and function in professional or managerial positions or other capacities involving the use of skill or discretion — might routinely be called upon in nonemergency situations to work more than 40 hours in a week without additional compensation. The 47.5-hour threshold takes this factual assessment into account by adding an additional full workday of 7.5 hours to the 40-hour workweek.

The statutory language supports this determination. The Civil Service Law specifically requires that “the workweek for basic annual salary” for employees who are eligible for overtime shall not exceed 40 hours, and provides that eligible employees required to work overtime are to be compensated for every weekly hour over 40 at a rate of IV2 times the employee’s regular hourly rate of pay (see Civil Service Law § 134 [1]). The Legislature could have included similarly specific directions in the statutory provisions pertaining to emergency overtime compensation for overtime-ineligible employees, but did not do so. These provisions instead leave to the discretion of the Budget Director the issues of whether to grant emergency overtime compensation and, within certain statutory limits, at what rate such compensation should be paid (see Civil Service Law § 134 [5], [6]). Notably, the statutory provisions pertaining to overtime-ineligible employees make no reference to a 40-hour workweek, while those pertaining to overtime-eligible employees do not use the phrase “normal workweek” that appears in the provisions pertaining to ineligible employees (see Civil Service Law § 134 [1], [5], [6]). The Legislature is presumed to have acted intentionally in using different language for the two classes of employees, in failing to define a “normal workweek” for overtime ineligible employees in terms of a specified number of hours, and in according discretion to the Budget Director with regard to the payment of emergency overtime compensation for employees who are ordinarily ineligible for overtime (see Matter of New York Constr. Materials Assn., Inc. v New York State Dept. of Envtl. Conservation, 83 AD3d at 1328 ).

Next, petitioners and Kent contend that the employer respondents acted arbitrarily and capriciously and were irrational in refusing to request that the Budget Director authorize payment for hours beyond 40 per week worked as a result of Hurricane Sandy. However, Civil Service Law § 134 (6) grants

Lahtinen, J.E, Rose and Devine, JJ., concur.

Ordered that the judgment is affirmed, without costs.