Kopyt v. Governor's Office of Employee Relations

CPLR article 78, to annul five determinations of respondent Governor’s Office of Employee Relations partially denying certain out-of-title work grievances.

The controversy over out-of-title work for certain senior correctional employees continues in this proceeding (see Matter of Criscolo v Vagianelis, 50 AD3d 1283 [2008]; Matter of Woodward v Governor’s Off of Empl. Relations, 279 AD2d 725 [2001]). Now at issue are out-of-title work grievances filed in 2001 on behalf of petitioners Frederick Kopyt, Theodore Fauss and Tom Hart (hereinafter collectively referred to as petitioners) alleging that each was required to regularly conduct tier III inmate disciplinary hearings in the course of their employment with respondent Department of Correctional Services when they were in the titles of, respectively, plant superintendent, education supervisor and vocational supervisor.^[1]

The salary grades for petitioners’ particular titles were either a grade 19 or 21.^[2] During the time period that each was required to conduct tier III hearings, only employees serving in the title of hearing officer, at a salary grade 25 (or the equivalent salary level of M-l), were authorized to perform this task. Thus, petitioners sought a cease and desist directive and retroactive pay differentials. Petitioners’ grievances were denied at the initial stages of the administrative process.

In April 2002, and following this Court’s decision in Matter of Woodward,^[3] the matter proceeded to a “step 3^[1] fa” appeal whereby respondent Governor’s Office of Employee Relations (hereinafter GOER) forwarded the grievances to respondent Division of Classification and Compensation of the New York State Department of Civil Service for review and opinion. Four years later, on August 15, 2006, the Division recommended that the grievances be sustained—because out-of-title work was indeed performed under the classification standards in effect when the grieved work was performed and the grievances filed— but without an award for back pay. With respect to this latter recommendation, the Division found that the grieved duties were commensurate with a salary grade of 18 and, because

petitioners were all employed in a higher salary grade, no additional compensation was warranted.^[4] This recommendation was made notwithstanding an acknowledgment by the Division that no grade 18 position then existed whereby employees such as petitioners were authorized to preside over tier III hearings, whether such hearings were routine or otherwise.^[5] Moreover, no attempt was made by the Division to distinguish the recommendation of no monetary award to petitioners in this proceeding with the contrary result in Matter of Woodward upon its remittal from this Court.^[6] GOER adopted the recommendation in total prompting this CPLR article 78 proceeding. Supreme Court granted the petition finding GOER’s determination was arbitrary, capricious and lacking in a rational basis. This appeal ensued. We now affirm.

Civil Service Law § 61 (2) prohibits the assignment of out-of-title work, except in circumstances not being alleged here. Indeed, there is no dispute that petitioners were compelled to perform out-of-title work. The heart of this dispute is GOER’s determination to deny them back pay. In so doing, GOER seizes upon a provision of the collective bargaining agreement governing petitioners’ employment which prohibits a monetary award for out-of-title work assignments where such “duties are found to be appropriate to a lower salary grade or to the same salary grade as that held by the affected employees.” Here respondents argue that after a “comprehensive analysis” of all relevant classifications and duties by the Division (albeit four years after the fact), it was determined that the duties performed by petitioners were appropriate to a lower salary grade and, therefore, under the terms of the collective bargaining agreement, no monetary award was warranted. However, it is undisputed that, during the time period that petitioners were actually performing the out-of-title work by serving as hearing officers in tier III hearings, the only title in the then-existing salary plan that encompassed such duties was that of a hearing officer at a grade