Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Appointing authority assigning certain duties individuals in classified titles given ?in-house? titles challenged as constituting ?out-of-title? work

Appointing authority assigning certain duties individuals in classified titles given ?in-house? titles challenged as constituting ?out-of-title? work
Matter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 01872, Decided on March 11, 2010, Appellate Division, Third Department

Kenneth Brynien, as President of the New York State Public Employees Federation, AFL-CIO, Appellant, sued the Governor's Office Of Employee after GOED denied an ?out-of-title work grievances.?

Brynien had filed 12 out-of-title work grievances challenging the full-time assignment of the certain employees who were employed in various clinical and direct care civil service titles* within Office of Mental Health [OMH] facilities. The grievances alleged that the full-time assignments of the 12 affected employees to the "in-house" position of "Quality of Care Risk Managers" were not properly approved by the Director of the Department of Civil Service's Division of Classification and Compensation in violation of Civil Service Law §§117 and 118. Accordingly, the incumbents were alleged to be performing ?improper out-of-title work? in view of the several ?official? civil service title standards and specifications and grade levels for the positions involved.

OMH denied the grievances and, following unsuccessful administrative appeals to Governor's Office of Employee Relations (GOER), Brynien commenced an CPLR article 78 proceeding asserting that GOER's determination was arbitrary, capricious and irrational. Supreme Court dismissed the petition.

The Appellate Division, affirming the lower court's ruling, said that the appropriate test to be applied in this case involves determining "whether the record as a whole provides a rational basis for the determination denying [Brynien?s] out-of-title work grievance[s]" and, unless the determination is "'wholly arbitrary or without any rational basis,'" it will not be disturbed.

The court decided that in this instance, with some variations, the duties encompassed in the "in-house" Quality of Care Risk Manager positions at each of the facilities involved risk management and quality assurance and performance improvement functions, primarily with regard to patient-related incidents.**

Although there was no dispute that risk management and quality assessment functions are not explicitly set forth in their respective civil service classification standards, the court noted that the commitment to the quality of patient care is a universal function of all OMH employees. The record, said the Appellate Division, provides a rational basis to support the determination that the risk management and quality assurance duties assigned to the affected employees are a logical extension of those duties listed in their respective civil service job titles and, therefore, do not constitute out-of-title work.

Further, the court disagreed with Brynien?s claim that it was arbitrary and capricious and in violation of Civil Service Law §118 to permit OMH to create the new in-house title "Quality of Care Risk Manager," finding that it was an acceptable practice for agencies to describe a given assignment within a classified job title through the use of an unofficial, in-house position*** and in this instance the affected employees were not performing out-of-title work.

* The "official titles" of the individuals given "in-house titles" and work assignments were Rehabilitation Counselor 2, Nurse 2, Rehabilitation Assistant 2, Nurse Administrator I, Licensed Master Social Worker 2, Residential Program Manager 2, Nurse 2 (Psychiatric), Utilization Review Coordinator, Nurse Administrator I (Psychiatric), and Nurse 3.

** The employees designated ?Quality of Care Risk Manager? review incident reports and related documents, interview patients and staff, question potential targets of disciplinary action and prepare reports in order to improve the facilities' performance.

*** The decision notes that the duties assigned and performed under the ?in-house title? were not exclusively identified with any classified job title.

Full post as published by New York Public Personnel Law on March 16, 2010 (boomark / email).