                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   518408
________________________________

In the Matter of the Claim of
   JULIAN R. BIRNBAUM,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent
________________________________


Calendar Date:   September 16, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

                             __________


     Julian R. Birnbaum, New York City, appellant pro se.

      Eric T. Schneiderman, Attorney General, New York City (Dawn
A. Foshee of counsel), for respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 25, 2013, which ruled that claimant was
ineligible to receive unemployment insurance benefits because he
was employed in a major nontenured policymaking or advisory
position within the meaning of Labor Law § 565 (2) (e).

      Claimant worked for the Division of Human Rights
(hereinafter DHR) as the Deputy Commissioner for Division
Initiated Investigations and Complaints. This was a nontenured
position classified as management/confidential. Claimant served
at the discretion of the Commissioner of Human Rights as well as
the Governor. When his employment ended, he applied for
unemployment insurance benefits. The Department of Labor issued
an initial determination finding that claimant was not entitled
to receive benefits because his base period employment was in a
major nontenured policymaking or advisory position that was
excluded under Labor Law § 565 (2) (e). Following a hearing, an
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Administrative Law Judge (hereinafter ALJ) overruled the initial
determination and found that claimant was entitled to receive
benefits. On appeal by the Commissioner of Labor, the
Unemployment Insurance Appeal Board rescinded the ALJ's decision
and remanded the matter for another hearing to further develop
the record. Following the additional hearing, the ALJ agreed
with the Department and sustained the initial determination. The
Board upheld this decision and claimant now appeals.

      For purposes of determining a claimant's eligibility for
unemployment insurance benefits, Labor Law § 565 (2) (e) excludes
from employment "services rendered for a governmental entity by
. . . a person in a major nontenured policymaking or advisory
position." Whether this exclusion applies presents a mixed
question of law and fact, and the Board's determination in this
regard will be upheld if it has a rational basis (see Matter of
Franconeri [New York City Dept. of Personnel–Hudacs], 190 AD2d
970, 971 [1993]; Matter of Le Porte [New York City Dept. of
Personnel–Hartnett], 142 AD2d 866, 866 [1988], lv denied 73 NY2d
705 [1989]).

      Here, claimant's position had three primary functions: (1)
to investigate patterns of discrimination involving violations of
the Human Rights Law appropriate for filing an administrative
complaint by DHR, (2) to oversee the prosecution of complaints
brought on behalf of individuals, and (3) to evaluate DHR's
issuance of exemptions for certain housing providers. In
addition, claimant was a member of the stimulus oversight team
responsible for ensuring that stimulus funds were distributed in
a nondiscriminatory manner. In performing his duties, claimant
reported directly to the Commissioner of Human Rights, had
meetings with the Commissioner on a variety of matters and made
recommendations on the implementation of agency policies. In
addition, he represented the DHR in its dealings with other
agencies while a member of the stimulus oversight team and
devised a system for gathering accurate information concerning
expenditures made in connection therewith. Although claimant did
not independently establish agency policy, he was involved in the
process and his advice was solicited by the Commissioner. Under
these circumstances, there is a rational basis for the Board's
decision that claimant held a major nontenured policymaking or
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advisory position excluded under Labor Law § 565 (2) (e) (see
Matter of Townes [Commissioner of Labor], 114 AD3d 989, 990
[2014]; Matter of Briggs [Commissioner of Labor], 90 AD3d 1349,
1350 [2011]; Matter of Newell [County of Nassau–Commissioner of
Labor], 9 AD3d 559, 560 [2004], lv denied 3 NY3d 610 [2004]).
Therefore, we find no reason to disturb it.

      Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.,
concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
