                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518904
________________________________

In the Matter of NEW YORK
   STATE CORRECTIONAL OFFICERS
   AND POLICE BENEVOLENT
   ASSOCIATION, INC., et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

GOVERNOR'S OFFICE OF EMPLOYEE
   RELATIONS et al.,
                    Respondents.
________________________________


Calendar Date:   January 9, 2015

Before:   McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.;
          Clark, J., vouched in.

                             __________


      Sheehan Greene Golderman & Jacques LLP, Albany (Erin N.
Parker of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondents.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the Supreme Court (McGrath, J.),
entered July 3, 2013 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Governor's
Office of Employee Relations denying petitioner Thomas Tierney's
out-of-title work grievance.

      Petitioner Thomas Tierney is employed by respondent Office
of Mental Health (hereinafter OMH) as a Safety and Security
                              -2-                518904

Officer 2 (hereinafter SSO 2) – a salary grade 15 position – and,
at all times relevant to this proceeding, was represented by
petitioner New York State Correctional Officers and Police
Benevolent Association, Inc. (hereinafter NYSCOPBA) – the
certified collective bargaining representative for the Security
Services Unit of state employees. In June 2011, the Chief Safety
and Security Officer (hereinafter CSSO) assigned to Hudson River
Psychiatric Center in Dutchess County – where Tierney then was
working as an SSO 2 – transferred to another facility. As a
result, Tierney was advised that he would be fulfilling the
duties of the CSSO and would be serving as the "Acting Chief" at
that facility.1 According to Tierney, he thereafter performed
the duties ordinarily assigned to the CSSO until the facility
closed in January 2012.

      In the interim, Tierney filed an out-of-title work
grievance in August 2011 seeking additional compensation for the
duties he performed in his capacity as the facility's CSSO – a
salary grade 20 position. As the step 1 review process
customarily is conducted by the CSSO in question, this portion of
the grievance process was bypassed in order to avoid having
Tierney review his own grievance. OMH thereafter conducted the
step 2 review of the grievance and, in December 2011, sustained
Tierney's grievance, finding that, "[a]fter a thorough review of
the record, facts, documentation and discussion with facility
management, it is [OMH's] determination that the grieved duties
are most appropriate to that of a [CSSO]." Ultimately, the
grievance proceeded to step 3 review,2 where respondent Division


    1
        According to information contained in the record, this
unofficial job title is not formally recognized by the Department
of Civil Service.
    2
        Tierney apparently was required to appeal through step 3
in order to obtain remuneration for the out-of-title work
performed and, to that end, OMH referred the grievance to
respondent Division of Classification and Compensation of the
Department of Civil Service to take appropriate action.
NYSCOPBA, noting that such referral was not in accordance with
proper procedure, thereafter filed a formal appeal upon Tierney's
                              -3-                518904

of Classification and Compensation of the Department of Civil
Service (hereinafter DCC) recommended that respondent Governor's
Office of Employee Relations (hereinafter GOER) deny the
grievance. GOER adopted that recommendation, and petitioners
thereafter commenced this CPLR article 78 proceeding to annul
GOER's determination. Supreme Court dismissed petitioners'
application, prompting this appeal.

      We affirm. Civil Service Law § 61 (2) provides, in
relevant part, that "no person shall be assigned to perform the
duties of any position unless he [or she] has been duly
appointed, promoted, transferred or reinstated to such position
in accordance with [the statute] and the rules prescribed
thereunder." "An out-of-title work assignment exists when an
employee has been assigned or compelled to perform the duties of
a higher grade, without a concomitant increase in pay,
frequently, recurrently and for long periods of time" (Matter of
New York State Corr. Officers & Police Benevolent Assn., Inc. v
Governor's Off. of Empl. Relations, 105 AD3d 1192, 1193 [2013]
[internal quotation marks and citations omitted]; see Matter of
City of Saratoga Springs v City of Saratoga Springs Civ. Serv.
Commn., 90 AD3d 1398, 1400 [2011]). An employee is not
necessarily performing out-of-title work by fulfilling some
overlapping functions of an absent supervisor, if those functions
are substantially similar to duties listed in the classification
standard for the employee's title (see Matter of New York State
Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off.
of Empl. Relations, 105 AD3d at 1194; Matter of City of Saratoga
Springs v City of Saratoga Springs Civ. Serv. Commn., 90 AD3d at
1400; see also Matter of Woodward v Governor's Off. of Empl.
Relations, 279 AD2d 725, 726 [2001]). In determining if the
prohibition against out-of-title work has been violated, courts
look "at the similarities between the duties assigned and those
customarily performed by the employee, the extent to which the
employee exercised the full range of duties of the higher level
position, and whether the duties actually performed could be
characterized as a reasonable extension of the employee's in-
title duties" (Matter of Cushing v Governor's Off. of Empl.


behalf.
                              -4-                518904

Relations, 58 AD3d 1095, 1096 [2009]; see Matter of New York
State Corr. Officers & Police Benevolent Assn., Inc. v Governor's
Off. of Empl. Relations, 105 AD3d at 1194; Matter of Brynien v
Governor's Off. of Empl. Relations, 79 AD3d 1435, 1436 [2010];
Matter of Haubert v Governor's Off. of Empl. Relations, 284 AD2d
879, 880 [2001]).

      Preliminarily, consistent with the well-settled principle
that "[j]udicial review of an administrative determination is
limited to the facts and record established before the agency"
(Matter of Laughlin v Pierce, 121 AD3d 1249, 1251 [2014]), we
have confined our review of the list of tasks performed by
Tierney to those set forth in his grievance form and have not
considered the expanded list of duties recited in the underlying
petition and Tierney's affidavit in support thereof. Although
our review of the subject grievance most likely would have been
enhanced had either Tierney or NYSCOPBA articulated Tierney's
out-of-title work claim with a greater degree of specificity, we
must decide this matter based on the record that was before GOER
and DCC. Our review is limited to whether that record provides a
rational basis for GOER's determination, and whether the
determination is arbitrary or capricious (see Matter of New York
State Corr. Officers & Police Benevolent Assn., Inc. v Governor's
Off. of Empl. Relations, 105 AD3d at 1193; Matter of Cushing v
Governor's Off. of Empl. Relations, 58 AD3d at 1097).

      Tierney was employed as an SSO 2 and alleged that he was
performing the work of a CSSO. On his grievance form, Tierney
listed the specific tasks that he performed that he believed
constituted out-of-title work, including supervisory
responsibilities. The entirety of that list was "[o]verseeing
day to day operations, attending committee and sub-committee
meetings, compile EOCC reports, overseeing vendors (Simplex &
ADT), generating reports, TIMR conference calls, monitor and
track overtime and adjust [d]uty [s]chedule to minimize usage[,]
. . . direct supervision of all [d]ay [s]hift [o]fficers[,] . . .
schedule assignments and ensure completeness." He then listed,
apparently as the employees that he supervised, two Safety and
Security Officers 1 (hereinafter SSO 1) and one SSO 1 trainee.
                              -5-                518904

      The classification standard for an SSO 2 states that
employees in that title are the "first supervisory level,"
responsible for a group of SSO 1s "on an assigned shift in a
facility." SSO 2s are responsible for "[d]irect supervision of
all [SSO 1s]," including scheduling and assigning them, providing
instruction and training, maintaining time and attendance
records, reviewing reports by subordinates, preparing reports and
performance appraisals and assisting the CSSO. SSO 2s are also
required to attend certain committee meetings, review facility
plans and prepare written reports. The classification standard
notes that SSO 2s "[m]ay be assigned to direct the department in
the absence of the [CSSO]."

      The classification standard for a CSSO states that
employees in that title are responsible for the overall operation
of a safety and security department, including "supervision of
all safety and security personnel," maintaining equipment and
records, and developing and evaluating all policies and
procedures. Some of the illustrative duties include supervising
and directing all personnel, reviewing and approving schedules
and assignments made by SSO 2s, ensuring maximum coverage with
available personnel, preparing annual performance reviews for SSO
2s, developing protocols and education programs, reviewing
reports of subordinates, preparing monthly and annual reports,
representing the department on committees, being responsible for
the budget, materials and the contracts for certain safety
systems, and developing, monitoring and evaluating all policies
and procedures. When comparing related classes, the CSSO
classification standard notes that SSO 2s are working supervisors
responsible for a force of less than 10 SSO 1s or serve as shift
supervisors.

      In considering the grievance, GOER and DCC compared the
grieved duties that Tierney listed on his grievance form with the
two classification standards. Some of the listed duties are
appropriate for either title, as both are supervisory positions.
These include attending committee meetings, preparing reports and
supervising subordinates. Scheduling of assignments is the
responsibility of an SSO 2, with a CSSO responsible for reviewing
and approving such work. An SSO 2 is generally the supervisor on
a specific shift, whereas a CSSO is the supervisor for all safety
                              -6-                518904

and security personnel in the department, which would include all
shifts. Tierney's grievance form stated that he was responsible
for supervising officers on the day shift, and listed the names
of three subordinate officers. These duties fall within the
typical responsibility of an SSO 2. Tierney did not assert in
his grievance form that he was performing all, or even the most
distinctive aspects, of the duties of a CSSO. Based on the
limited duties listed on Tierney's grievance form, DCC and GOER
rationally found that the work he was performing, in the absence
of his supervisor, either fell within the duties of an SSO 2 or
were a reasonable and logical outgrowth of those duties (see
Matter of New York State Corr. Officers & Police Benevolent
Assn., Inc. v Governor's Off. of Empl. Relations, 105 AD3d at
1196-1197; Matter of Cushing v Governor's Off. of Empl.
Relations, 58 AD3d at 1097).

      The dissent is persuaded by and relies upon the step 2
determination by OMH finding that Tierney's grievance should be
granted. OMH did not dispute that Tierney was performing the
duties that he asserted. OMH then stated, in a conclusory
fashion, that it found the grieved duties most appropriate to the
CSSO title, after reviewing the record, facts and documents and a
discussion with facility staff. DCC and GOER also did not
dispute that Tierney performed the grieved duties, but reached a
different legal conclusion. It is unclear if OMH performed the
comparison of the grieved duties to the two classification
standards, as DCC did. Rather than deferring to OMH, as the
dissent does, we should defer to DCC and GOER, the agencies or
offices that are responsible for regularly making this type of
determination (see Civil Service Law § 118 [2]; Executive Law
§§ 653, 654) and that are not bound by OMH's decision.

      Petitioners also contend that DCC and GOER acted
arbitrarily and irrationally by deciding this grievance
differently than that of another SSO 2 who was assigned as an
Acting CSSO for a different facility. The other SSO 2 asserted
on her grievance form that she performed many more of the CSSO
duties and stated that she, among other things, supervised all 28
employees of her safety department across all three shifts.
Considering this enhanced information, the record substantiates
respondents' assertions that the facts presented by those two
                              -7-                518904

individuals were different, rationally leading to different
outcomes. Inasmuch as GOER's determination here was rationally
based on the evidence presented to it, and was not arbitrary or
capricious, we will not disturb that determination.

     Rose and Clark, JJ., concur.


Egan Jr., J. (dissenting).

      We recognize that this Court's review in this matter is
limited to ascertaining whether the determination rendered by
respondent Governor's Office of Employee Relations (hereinafter
GOER) denying petitioner Thomas Tierney's out-of-title work
grievance was rational (see Matter of New York State Corr.
Officers & Police Benevolent Assn., Inc. v Governor's Off. of
Empl. Relations, 105 AD3d 1192, 1193 [2013]), and we acknowledge
that an administrative determination made by an entity "acting
pursuant to its authority and within its area of expertise is
entitled to judicial deference" (Matter of WL, LLC v Department
of Economic Dev., 97 AD3d 24, 29 [2012], affd sub nom. James Sq.
Assoc. LP v Mullen, 21 NY3d 233 [2013] [internal quotation marks
and citation omitted]). Such deference, however, is not
unlimited, and the mere fact that GOER "regularly mak[es] this
type of determination" does not render its decision making in
this regard infallible. As we are not persuaded that GOER's
denial of Tierney's grievance was – upon due consideration of all
of the attendant circumstances – rational, we respectfully
dissent.

      At all times relevant, Tierney was employed by respondent
Office of Mental Health (hereinafter OMH) as a Safety and
Security Officer 2 (hereinafter SSO 2) at Hudson River
Psychiatric Facility in Dutchess County. On or about June 28,
2011, the Chief Safety and Security Officer (hereinafter CSSO)
then assigned to that facility was transferred to an OMH facility
in Onondaga County. The following day, Tierney was notified by
an individual identified as the "Director for Administrative
Services" that he would be fulfilling the duties of the CSSO –
specifically, that he would be serving as the "Acting Chief" at
                              -8-                518904

the Hudson River facility.1 According to Tierney, "all employees
in the [facility's] safety and security department" subsequently
were advised of this decision and, beginning on June 30, 2011, he
performed the duties of the CSSO until the Hudson River facility
closed on or about January 25, 2012.

      In response to the out-of-title work grievance that Tierney
filed in August 2011, OMH – as part of the step 2 review process
– concluded, following "a thorough review of the record, facts,
documentation and discussion with facility management," that "the
grieved duties [performed by Tierney were] most appropriate to
that of a [CSSO]." Accordingly, OMH sustained Tierney's
grievance. In order to obtain remuneration, however, Tierney was
– as outlined in the majority's decision – required to appeal
through step 3 of the grievance process, which ultimately
resulted in the denial of his grievance by GOER.

      The majority has outlined the classification standards and
duties typically associated with both the CSSO and SSO 2
positions, and the SSO 2 classification standard indeed
contemplates that there may be instances in which an SSO 2 would
be called upon to "direct the department in the absence of the
[CSSO]." We also acknowledge that, as a general proposition, the
overlap that exists between affected job titles is insufficient
to warrant a finding that a grievant is performing out-of-title
work (see Matter of City of Saratoga Springs v City of Saratoga
Springs Civ. Serv. Commn., 90 AD3d 1398, 1400 [2011]). Here,
however, it is important to note that Tierney was not simply
filling in for a CSSO who was temporarily absent from the
facility due to, for example, illness or vacation. Rather,
Tierney acted in place of the facility's former CSSO, who had
transferred out to another facility, for a period of seven months


    1
        In reviewing the merits of Tierney's grievance, we have –
like the majority – confined our review to those tasks set forth
in Tierney's grievance form and those materials that otherwise
were part of the administrative record before GOER. However, for
purposes of providing background information and placing
Tierney's grievance in context, we have referred to the
underlying petition and Tierney's accompanying affidavit.
                                -9-               518904

until the Hudson River facility closed altogether in January
2012.2 To our analysis, the circumstances under which Tierney
assumed the duties of the CSSO are highly relevant in evaluating
whether GOER's denial of his grievance was rational.

      We reach a similar conclusion with respect to OMH's written
decision following step 2 of the review process. OMH is the
entity in charge of the very facility at which Tierney first
worked as an SSO 2 and thereafter assumed the duties of the CSSO.
As the agency providing oversight and supervision for such
facility, OMH is – in our view – in a significantly better
position than GOER to understand and evaluate the tasks performed
by its employees on a daily basis. While we appreciate that
OMH's conclusions as to whether Tierney was performing out-of-
title work are not binding on GOER, it strikes us as irrational
for GOER to base its decision to deny Tierney's grievance upon a
generic, out-of-context examination of the applicable Department
of Civil Service classification standards rather than the
reasoned conclusion reached by OMH – a conclusion arrived at
following a thorough review of the particular facts and
circumstances and, more importantly, discussions with facility
personnel. Stated another way, GOER should have placed greater
stock in OMH's case-specific findings and overall ability to
accurately analyze the merits of Tierney's grievance and assess
whether the duties performed by him while serving as the
facility's acting CSSO indeed constituted out-of-title work. For
all of these reasons, we find GOER's denial of Tierney's
grievance to be irrational. Accordingly, we would reverse
Supreme Court's judgment and annul GOER's determination.

         Devine, J., concurs.




     2
        Nothing in the record suggests that OMH ever sought to
formally fill the CSSO position at the Hudson River facility
after the departing CSSO transferred in June 2011.
                        -10-                 518904

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
