New York Law Review

Tag: Out-of-Title Work

  • Matter of Tierney v. New York State Office of Mental Health, 28 N.Y.3d 937 (2016): Out-of-Title Work and Civil Service Regulations

    Matter of Tierney v. New York State Office of Mental Health, 28 N.Y.3d 937 (2016)

    A government employee is not entitled to additional compensation for performing duties outside their job title if those duties are consistent with their existing title and responsibilities and are not substantially different from the normal duties of the employee’s position.

    Summary

    Thomas Tierney, a Safety and Security Officer 2 (SS02) at a New York State psychiatric center, served as Acting Chief Safety and Security Officer (CSSO) for a period and sought additional compensation for the extra duties. He filed a grievance claiming he was performing out-of-title work. The state’s Department of Civil Service (DCC) and the Governor’s Office of Employee Relations (GOER) denied his grievance, determining that the duties he performed were consistent with the SS02 title. The New York Court of Appeals affirmed, finding that the determination was rational and not arbitrary or capricious, as the duties performed were not substantially different from those expected of an SS02.

    Facts

    Thomas Tierney, employed by the Office of Mental Health (OMH) as an SS02, was assigned to the Hudson River Psychiatric Center. When the CSSO position became vacant, Tierney served as Acting CSSO. He filed a grievance seeking additional compensation for the work he performed while acting in the CSSO role, listing specific duties he undertook. OMH sustained the grievance at step 2 but deferred the decision to DCC. DCC compared the duties of CSSOs and SS02s and concluded that the duties Tierney performed were consistent with his SS02 title. GOER adopted DCC’s findings and denied the grievance.

    Procedural History

    Tierney filed a grievance with OMH seeking additional compensation for out-of-title work. The grievance was reviewed through three steps, involving OMH, DCC, and GOER. The DCC and GOER denied the grievance. Tierney then filed an Article 78 petition in the trial court, which dismissed the proceeding. The Appellate Division affirmed the lower court’s decision. The New York Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether GOER’s determination, adopting the findings of DCC, that Tierney’s duties as Acting CSSO were consistent with his SS02 position, was arbitrary and capricious.

    Holding

    1. No, because the Court of Appeals found that GOER’s determination was supported by a rational basis and was not arbitrary or capricious.

    Court’s Reasoning

    The court applied the standard of review for administrative determinations, stating that such decisions must be upheld if they have a rational basis and are not arbitrary or capricious. Civil Service Law § 61 (2) restricts employees from performing duties of a position unless they are duly appointed to it. The court noted that the record supported the determination that Tierney was performing duties consistent with his SS02 title. The court emphasized that the out-of-title work, which involved his performance as an Acting CSSO, did not meet the standard for additional compensation because the duties were a natural extension of his SS02 role. The court highlighted that the duties in his grievance form did not reflect the key distinctive duties of a CSSO. The court found that the DCC’s comparison of the duties was rational, and that GOER’s adoption of the DCC’s findings was therefore appropriate.

    Practical Implications

    This case reinforces the deference courts give to administrative agencies in civil service matters. It clarifies that employees are not entitled to additional compensation simply for performing duties outside their specific title, especially if those duties are within the scope of their existing job description. The case underscores the importance of a comprehensive analysis of job duties when evaluating claims of out-of-title work. It implies that government employees must provide complete details of their additional responsibilities in their grievances in order to get additional compensation. The decision should guide how the lower courts analyze similar cases involving civil service employees. The ruling also suggests that if a government employee performs out-of-title work over an extended period, they are not automatically entitled to compensation; the critical inquiry centers on the nature of the work performed.

  • Criscolo v. Vagianelis, 11 N.Y.3d 93 (2008): Permissible Reclassification of Civil Service Titles

    Criscolo v. Vagianelis, 11 N.Y.3d 93 (2008)

    Administrative determinations concerning position classifications are subject to limited judicial review and will not be disturbed unless wholly arbitrary or without rational basis.

    Summary

    New York Department of Correctional Services (DOCS) employees challenged the Division of Classification and Compensation’s (Division) decision to revise civil service titles to include conducting inmate disciplinary hearings (tier III hearings). The Division determined that these hearings were routine and that DOCS employees in certain positions were qualified to conduct them. The Court of Appeals affirmed the lower court’s decision, holding that the Division’s determination was rational because it was based on a comprehensive analysis of the job duties and the requirements of tier III hearings, and did not constitute an impermissible out-of-title assignment designed to circumvent competitive examination requirements.

    Facts

    DOCS employees in civil service titles such as education supervisor and plant superintendent began conducting tier III hearings. The Public Employees Federation (PEF) grieved this assignment, arguing it was outside their job descriptions. The Division analyzed the civil service titles, the tier III hearing process, and the duties of an Inmate Disciplinary Hearing Officer (IDHO). The Division determined that tier III hearings assigned to non-attorney personnel were routine, less complex, and employees received appropriate training. As a result, the Division amended the classification specifications for these titles to include tier III hearing duties.

    Procedural History

    Petitioners commenced a CPLR article 78 proceeding in Supreme Court, which dismissed the petition. The Appellate Division affirmed. Petitioners appealed to the Court of Appeals as of right.

    Issue(s)

    Whether the Division’s revision of civil service titles to include tier III hearing work was arbitrary and capricious, and whether it violated constitutional and statutory limits on reclassification of civil service positions.

    Holding

    No, because the Division demonstrated a rational basis for adding tier III hearing duties, and the revision did not result in an improper out-of-grade assignment circumventing competitive examination requirements.

    Court’s Reasoning

    The Court emphasized the limited scope of judicial review for administrative determinations concerning position classifications, stating they “will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis” (Cove v. Sise, 71 NY2d 910, 912 [1988]). The Court found the Division’s determination was rational based on its comprehensive analysis of the knowledge, skills, and abilities required for the civil service titles and the tier III hearings. The court distinguished prior decisions finding tier III hearing duties comprised out-of-title work, explaining that those decisions were based on prior classification specifications. The Division is permitted to “rework classification specifications to reflect management’s needs and available resources.” The court also distinguished cases like Gavigan v. McCoy, explaining those cases prevented manipulating a reclassification to avoid the competitive examination requirements for promotions, which was not the case here. The court noted, “reclassification may not be employed as a device to sanction the performance of out-of-title duties and thereby avoid the requirement of a competitive examination for promotion” (Niebling, 12 NY2d at 319). The court emphasized that petitioners’ titles were not reclassified to a higher grade or salary, so the revised classification standards did not violate constitutional or statutory limits on reclassification.

  • Matter of Bell v. County of Nassau, 61 N.Y.2d 283 (1984): Out-of-Title Work Does Not Create Reclassification Rights

    Matter of Bell v. County of Nassau, 61 N.Y.2d 283 (1984)

    Performing out-of-title duties does not create a right to reclassification to a new position involving those duties, even when a statute provides a mechanism for incumbents of a position to gain permanent competitive class status.

    Summary

    Petitioners sought permanent competitive class status as principal office assistants based on having performed the duties of that position for a year, pursuant to Chapter 846 of the Laws of 1980. They conceded they were never provisionally appointed and their work was out of title. The Supreme Court granted their petition, but the Appellate Division reversed. The Court of Appeals affirmed the Appellate Division’s decision, holding that performing out-of-title duties does not create a right to reclassification, and the statute’s language focused on “incumbents” of a position, not those merely performing its duties.

    Facts

    Petitioners, employees of Nassau County, performed the duties of principal office assistants for at least one year prior to July 1, 1980. They were never provisionally appointed to the position of principal office assistant. Their work as principal office assistants was considered “out of title,” meaning they were performing duties outside of their official job classification. They sought to be appointed to the position of Principal Office Assistant retroactively based on Chapter 846 of the Laws of 1980, which applied to Nassau and Suffolk Counties.

    Procedural History

    The petitioners filed a petition in Supreme Court seeking appointment to the position of principal office assistant. The Supreme Court granted the petition. The Appellate Division reversed the Supreme Court’s decision and dismissed the petition on the merits. The petitioners appealed to the New York Court of Appeals.

    Issue(s)

    Whether Chapter 846 of the Laws of 1980 entitles employees who performed out-of-title duties of a position for one year to permanent competitive class status in that position, even if they were never provisionally appointed to it.

    Holding

    No, because the statute’s language and intent focus on “incumbents” of a position, meaning those officially appointed or designated to the role, and not individuals merely performing the duties of that role out of title.

    Court’s Reasoning

    The court emphasized that Chapter 846 consistently refers to positions “provisionally filled,” “present incumbents,” and “incumbents occupying positions.” The statute’s operative provisions are geared towards individuals officially holding a position, not those merely performing its duties. The court relied on the established principle that performing out-of-title duties does not create a right to reclassification. The Court quoted Matter of Gavigan v. McCoy, 37 NY2d 548, 550-551, stating “that the performance of out-of-title duties creates no right to reclassification to a new position involving those duties”. The court refused to interpret Chapter 846 as overturning this well-established rule without a much clearer statement of legislative intent. The court reasoned that the legislature would need to explicitly state its intent to counter this established rule, and no such explicit statement existed within Chapter 846.

  • Matter of Grossman v. Rankin, 43 N.Y.2d 493 (1978): The Limits of “Satisfactory Equivalent Service” for Promotional Appointments

    Matter of Grossman v. Rankin, 43 N.Y.2d 493 (1978)

    “Satisfactory equivalent service,” traditionally applied to open competitive examinations, does not automatically extend to promotional appointments, especially where it would undermine the merit-based promotion system by crediting out-of-title work.

    Summary

    Grossman sought appointment as Borough Foreman, requiring a promotional exam and one year as a district foreman. He passed the exam but only served nine months as a district foreman before a demotion. Later, appointed as Acting Deputy Administrative Superintendent and Acting Administrative Superintendent, he argued these higher positions satisfied the experience requirement. The court reversed the Appellate Division’s decision, holding that “satisfactory equivalent service” does not apply to promotional appointments in the same way as open competitive exams. Granting credit for out-of-title work would undermine the merit-based civil service system, as supervisors could unfairly favor employees. Therefore, the respondent’s denial of Grossman’s eligibility was reasonable.

    Facts

    1. Grossman passed a promotional examination for Borough Foreman.
    2. Eligibility required one year of service as a district foreman.
    3. Grossman served nine months as district foreman before requesting a demotion for personal reasons.
    4. Years later, he requested reinstatement to the eligible list but was denied.
    5. He was then appointed as Acting Deputy Administrative Superintendent and later as Acting Administrative Superintendent.
    6. Grossman argued that these acting positions, allegedly higher in the administrative chain, should qualify as equivalent service.

    Procedural History

    Petitioner commenced an Article 78 proceeding seeking appointment. The Appellate Division initially ruled in favor of Grossman, seemingly accepting his argument that the acting positions were equivalent service. The New York Court of Appeals reversed the Appellate Division’s order and dismissed the petition.

    Issue(s)

    1. Whether the concept of “satisfactory equivalent service,” traditionally applied for eligibility to take open competitive examinations, extends to promotional appointments?
    2. Whether crediting out-of-title work for promotional appointments undermines the concept of merit and fitness in civil service promotions?

    Holding

    1. No, because the application of “satisfactory equivalent service” is different in the context of promotional appointments as opposed to eligibility for open competitive examinations.
    2. Yes, because allowing credit for out-of-title work could lead to supervisors favoring certain employees, undermining the merit-based system.

    Court’s Reasoning

    The Court of Appeals distinguished between experience requirements for open competitive examinations (where “satisfactory equivalent service” is typically applied, citing Matter of Murray v McNamara, 303 NY 140) and experience requirements for promotional appointments. The court emphasized that Section 61(2) of the Civil Service Law prohibits granting credit for out-of-title work in promotional examinations, and extended this principle to promotional appointments. The court reasoned that allowing credit for out-of-title work in promotional appointments would undermine the merit-based system. Supervisors could manipulate the system by assigning favored employees to acting positions, giving them an unfair advantage in promotions. The court stated, “To hold otherwise would effectively undermine the concept of promotion on the basis of merit and fitness, since supervisors could favor certain employees for promotion over others simply by assigning them to a title in an acting capacity.” Thus, the respondent’s interpretation of the regulations, denying Grossman eligibility, was reasonable. The court did not address whether the acting positions were, in fact, higher in the administrative chain, finding it irrelevant to the central legal issue.

  • Gavigan v. McCoy, 37 N.Y.2d 548 (1975): Out-of-Title Work Does Not Create Right to Reclassification

    Gavigan v. McCoy, 37 N.Y.2d 548 (1975)

    The performance of out-of-title duties by a public employee, even with the knowledge and consent of the employer, does not create a right to reclassification to a new position encompassing those duties.

    Summary

    Gavigan, an Assistant Special Deputy Clerk in the Bronx County Court, sought reclassification to Law Assistant II, arguing he had been performing legal duties beyond his official title. The New York Court of Appeals held that performing out-of-title work, even if known and consented to by the employer, does not entitle an employee to reclassification. The court emphasized that job specifications, not actual duties performed, determine the proper classification. The decision reinforces the principle that civil service positions should be protected from manipulation and that reclassification must be based on the inherent duties of a position, not merely on tasks an employee has been assigned.

    Facts

    Petitioner Gavigan, an attorney, was employed as an Assistant Special Deputy Clerk in the Bronx County Court. While holding this title, he performed legal duties for judges, in addition to his clerical responsibilities. Following a 1962 court reorganization, his position was reclassified as Court Clerk I. Gavigan contested this, claiming he should be reclassified as Law Assistant II due to the legal work he performed.

    Procedural History

    Gavigan initially filed an Article 78 proceeding challenging the Administrative Board’s classification. The Appellate Division initially dismissed the petition. The Court of Appeals reversed and remitted the case, finding the record lacked evidence regarding the job description of an Assistant Special Deputy Clerk and whether the position had an unlimited salary range. On remand, Special Term granted Gavigan’s petition. The Appellate Division reversed, holding that out-of-title work could not justify reclassification. This decision was appealed to the Court of Appeals.

    Issue(s)

    Whether an employee’s performance of out-of-title duties, even with the employer’s knowledge and consent, entitles the employee to reclassification to a position that includes those duties.

    Holding

    No, because the performance of out-of-title duties does not create a right to reclassification; job specifications for the original title govern what duties are properly performed.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s decision, relying on established precedent that performing out-of-title duties does not create a right to reclassification. The court emphasized that determinative of proper duties are the job specifications. The court stated: “Out-of-title duties are duties ‘not properly subsumed under the title and description of the old position’”. The court found that the job specifications for Assistant Special Deputy Clerk primarily involved clerical work and did not require extensive legal training, while the Law Assistant position required professional legal research. The court rejected the argument that the respondent should be estopped from reclassifying petitioner simply because its predecessor agency knew of and consented to petitioner’s performance of legal duties while he was a court clerk, citing that estoppel does not lie against the State, a municipality or their agencies where the governmental body was exercising its statutory or regulatory authority. Addressing concerns about potential manipulation, the court quoted Matter of Goldhirsch v. Krone: “it is immaterial that any deliberate manipulation be lacking. It is enough that the ‘higher pay and heavier responsibilities * * * did not grow out of the * * * work as prescribed by the job specifications’”. The court underscored the purpose of civil service laws to promote public service and safeguard graded positions from political manipulation. The court found it important to enforce the well-established rule to safeguard the graded positions of civil service and thus insulate their status from political manipulation.

  • Matter of Goldhirsch v. Krone, 18 N.Y.2d 180 (1966): Reclassification Requires Examination When Duties Change Substantially

    Matter of Goldhirsch v. Krone, 18 N.Y.2d 180 (1966)

    A civil service employee is not entitled to reclassification to a higher position without a competitive examination if the duties of the new position are substantially different from the employee’s current role, even if the employee has been performing some of those duties “out-of-title.”

    Summary

    Goldhirsch and Kelly, New York State Department of Labor employees working as Employment Interviewers and Senior Employment Interviewers, sought reclassification to the newly created positions of Employment Counselor and Senior Employment Counselor without undergoing a competitive examination. They argued that their current duties already encompassed the responsibilities of the new positions. The New York Court of Appeals reversed the lower courts’ decisions, holding that the positions were sufficiently distinct to require an examination for reclassification, preventing circumvention of civil service laws designed to ensure fair competition and merit-based promotions.

    Facts

    The petitioners were employed by the New York State Department of Labor’s Division of Employment as Employment Interviewers and Senior Employment Interviewers. The United States Department of Labor recommended the creation of new positions: Employment Counselor and Senior Employment Counselor. The petitioners sought to be reclassified into these new positions without taking a competitive examination, arguing their current duties already aligned with the counselor roles. Some petitioners claimed they were already performing counseling duties informally. Others asserted the duties of Interviewers and Counselors were interchangeable.

    Procedural History

    The petitioners initiated Article 78 proceedings after the Civil Service Commission and the Industrial Commissioner denied their request for reclassification without examination. The lower courts ruled in favor of the petitioners, finding the denial arbitrary and capricious, and directed the Civil Service Commission to reclassify the petitioners without re-examination. The Court of Appeals granted leave to appeal to the Civil Service Commission and the Industrial Commissioner and reversed the lower court’s decisions.

    Issue(s)

    Whether civil service employees are entitled to be reclassified to new and higher positions without a competitive examination when the duties of the new positions are substantially different from their current positions, even if they have performed some of those duties “out-of-title.”

    Holding

    No, because the duties of Employment Interviewers and Employment Counselors are substantially different, and reclassification based on “out-of-title” work would undermine the merit-based principles of the Civil Service system.

    Court’s Reasoning

    The Court of Appeals emphasized that the duties of Interviewers and Counselors, as described in the examination notices, are distinct. Interviewers primarily focus on job placement, while Counselors provide a wider range of professional counseling services, including vocational guidance, rehabilitation, and job follow-ups. The court noted that the overlap between the positions was limited to job placement, with Counselors having a much broader scope of responsibilities. The court reasoned that even if some Interviewers were performing counseling duties, it constituted impermissible “out-of-title” work. Relying on precedent such as Matter of Carolan v. Schechter and Matter of Niebling v. Wagner, the court reaffirmed the principle that employees cannot be reclassified to higher positions without examination based on duties they performed beyond the scope of their original job specifications. The court stated, “If ‘out-of-title’ work was invalidly imposed upon or assumed by the incumbents prior to the reclassification, it may not be validated by a reclassification which is based thereon.” The court distinguished Matter of Mandle v. Brown, where attorneys in an unlimited salary grade were reclassified based on equivalent duties and salaries as part of an overall reclassification. In this case, the Goldhirsch petitioners sought reclassification based on duties outside their specified roles, which the court found unacceptable. Permitting such reclassification would circumvent the competitive examination process designed to ensure promotions are based on merit and qualifications, not simply on the performance of duties outside the scope of the employee’s original position.