Opinion
# 2014-015-573 Claim No. 118571
04-10-2014
JAMES L. GELORMINI v. THE STATE OF NEW YORK
Dominic Pellegrino, EsquireJames L. Gelormini, Trial Counsel Honorable Eric T. Schneiderman, Attorney GeneralBy: Joseph F. Romani, EsquireAssistant Attorney General
Synopsis
Claim seeking damages for defendant's failure to pay claimant an increased salary duringthe period he was appointed Acting Assistant Attorney General In Charge was dismissedfollowing trial. There was neither a statutory or contractual obligation to increase the salary of anAssistant Attorney General appointed Acting Assistant Attorney General In Charge.
Case information
| UID: | 2014-015-573 |
| Claimant(s): | JAMES L. GELORMINI |
| Claimant short name: | GELORMINI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118571 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Dominic Pellegrino, EsquireJames L. Gelormini, Trial Counsel |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney GeneralBy: Joseph F. Romani, EsquireAssistant Attorney General |
| Third-party defendant'sattorney: | |
| Signature date: | April 10, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Claimant was appointed Acting Assistant Attorney General In Charge (Acting AAGIC) ofthe Rochester Regional Office 17 months prior to his retirement and seeks damages for defendant'salleged failure to pay him the salary his predecessor was earning as the Assistant Attorney GeneralIn Charge (AAGIC). He alleges causes of action for failure to pay monies "lawfully due and owingto claimant" (first cause of action); breach of a contract implied in law (second cause of action) ; and deprivation of property without due process of law (third cause of action). Trial on the issue ofliability was held on November 14, 2013 and the decision herein relates solely to the issue ofliability.
Claimant first joined the Attorney General's Office in September 1988 as an AssistantAttorney General (AAG) in the Rochester Regional Office. Shortly after the November electionsin 2006, Robert Colon, the then AAGIC of the Rochester Regional Office, advised staff that hewould be leaving and informed the claimant that he had recommended him as his replacement aseither the permanent AAGIC or Acting AAGIC until a permanent replacement could be found. Claimant advised Mr. Colon that he would be willing to discuss both positions. In January 2007the claimant met with Frank Hoare, the then Deputy Attorney General In Charge of Regional Offices, at the Rochester regional office. In a private conversation, Mr. Hoare explained that the AttorneyGeneral's Office was interviewing prospective candidates for the AAGIC position and asked theclaimant if he would be interested in the position of Acting AAGIC until a replacement for Mr.Colon could found. Mr. Hoare also encouraged claimant to apply for the AAGIC position. Claimant testified that he inquired whether "I would be getting the salary of the regional office head"while in the Acting AAGIC position (Tr. 5) and was advised that whether he would receive thesalary of an AAGIC following his appointment as the Acting AAGIC was an open issue, but thatthey were interviewing in February 2007 and a decision would likely be made shortly thereafter. Ifa salary increase was permitted, Mr. Hoare assured him that it would be retroactive to the date of hisappointment. After thinking about the offer for several days claimant accepted the appointment asActing AAGIC and assumed those duties, in addition to his duties as AAG.
Numbers in parenthesis preceded by "Tr." refer to the page numbers of the trial transcript.
Exhibit 1 reflects that the claimant was appointed Acting AAGIC by Attorney GeneralAndrew Cuomo on January 29, 2007. The appointment indicates "No Change" in salary and that "This is a title change only" (id.). Claimant testified that following his appointment as ActingAAGIC, in addition to his duties as an AAG handling a Court of Claims caseload, he also supervisedthe attorneys and support staff of the various bureaus within the Rochester Regional Office. Hisnew duties included assigning work, reviewing cases, approving settlements, attending periodicmanagerial meetings and preparing a proposed budget for the next fiscal year.
Claimant raised the issue of his salary with Mr. Hoare several times following hisappointment as Acting AAGIC. On each occasion Mr. Hoare responded that the matter was underconsideration. Finally, sometime in 2008, Mr. Hoare informed claimant that the salary issue wasbeing considered by Steven Cohen, the Attorney General's Chief of Staff. Claimant thereafter sentMr. Cohen an email, dated May 13, 2008, in which he explained the substantial amount of time hedevoted to performing the duties of Acting AAGIC, in addition to performing the duties requiredof him as an AAG, and noted the "substantial effect" a salary increase would have on his Statepension (Exhibit 5). Mr. Cohen responded that his assistant had recently returned from sick leaveand he would discuss the matter with her. He also asked claimant whether he had discussed thematter with Mr. Hoare, to which the claimant responded that he had, several times (id.). Havingreceived no response from Mr. Cohen regarding his salary request, claimant again raised the matterwith him at a managerial meeting on June 4, 2008. Mr. Cohen responded that he wanted to discussthe issue with Mr. Hoare. Mr. Hoare, also at the meeting, advised claimant privately, however, thatthis was not true in that he had, in fact, recommended to Mr. Cohen several times that claimant bepaid the higher AAGIC salary.
Claimant retired from the Office of the Attorney General effective July 16, 2008. His lastday of work in the office was June 27, 2008 and he received his last pay stub on August 8, 2008,which did not include a retroactive amount for work performed at a higher rate of pay as ActingAAGIC.
Claimant's predecessor, Robert Colon, was earning $135, 384 as of the date of his departurefrom the Attorney General's office on January 20, 2007 (Tr. 15; Exhibit 2, P. 5). At the time of his retirement in July 2008, claimant was earning $129,166 (Exhibit C, p.11). Debra Martin, claimant'ssuccessor, was appointed to the position of AAGIC on July 7, 2008. As indicated on the RequestFor Budget Director's Approval form (Exhibit 6, p. 33), Ms. Martin was hired at the rate of $130,000which, as indicated on the form, was within the AAGIC salary range of $124,131 to $163,259. Ms.Martin's salary request was approved by the Director of the Budget on June 6, 2008 (id.).
Received in evidence as claimant's Exhibit 10 is a chart, derived from payroll records, whichsets forth the salaries of two Acting AAGIC and two Acting Bureau Chiefs appointed in 2006. Thisrecord indicates that with each appointment to the Acting AAGIC/Bureau Chief position, theappointee received an increase in salary equal to that of his or her predecessor.
On cross-examination, claimant admitted he had not been promised an increase in salary ifhe took the Acting AAGIC position. Claimant also acknowledged the fact that he received bothcost-of-living allowances (COLAs) and a performance-based raise during his tenure as ActingAAGIC. As of the date of his appointment to the Acting AAGIC position on January 29, 2007,claimant was earning $117, 951 (Exhibit C, p. 11). He received a COLA and performance raise onApril 5, 2007, which increased his salary to $125,404 (id.). Claimant received another COLA thefollowing year which increased his salary to $129,166, the amount of his salary on the date of hisretirement. Claimant testified that Robert Colon, the AAGIC of the Rochester Office before him,was earning $135,384 on January 20, 2007, the date he left his employment with the AttorneyGeneral's Office (see also Exhibit 6, p. 32).
Claimant testified that he advised Mr. Hoare of his decision to retire by letter dated May 7,2008 and that no decision had been communicated to him regarding his request for a salary increaseprior to the date of his departure from the AG's office.
Claimant called Frank Hoare to testify on his behalf. Mr. Hoare, now a partner with the lawfirm of Featherstonaugh, Wiley and Clyne, LLP, worked in the Attorney General's Office fromJanuary 1, 2007 through sometime in July 2008. He stated that he was initially appointed as aDeputy Counsel in the Attorney General's Office and, in May 2007, was also made the DeputyAttorney General in Charge of Regional Offices responsible for supervising the "Heads" of eachof the thirteen regional offices of the Attorney General. As such, Mr. Hoare was involved in theinterviewing and hiring process including the appointment of AAGICs, and made hiringrecommendations to Steve Cohen, the Attorney General's Chief of Staff. Although Mr. Hoare wasunable to recall certain specifics of his time in the Attorney General's Office, he recalledinterviewing the claimant for the position of AAGIC in the Rochester Regional Office. He testifiedto his recollection that the claimant was asked to be the Acting AAGIC to oversee the office untilthey were able to find a candidate to fill the AAGIC position. He also recalled that claimant askedhim for an increase in salary upon being appointed to the Acting AAGIC position, which he passedup the chain of command. Mr. Hoare testified on cross-examination that he would not have toldthe claimant he would receive a raise because he had no such authority. He also testified that therewas an established salary range for the AAGIC position within the Attorney General's office duringthe period from January 2007 through July 2008 (see Exhibit B).
Claimant next called Steven Cohen to testify on his behalf. Mr. Cohen was Counselor to theAttorney General and Chief of Staff in the Office of the Attorney General from January 1, 2007 toDecember 31, 2010. Mr. Cohen testified that there was never a need to discuss salary for thoseappointed to the position of Acting AAGIC because it was considered a voluntary appointment and,as a general rule, all individuals appointed in an acting capacity continued to receive their thencurrent salary. He vaguely recalled speaking with Mr. Hoare regarding the AAGIC vacancy createdby Mr. Colon's departure and claimant's request for a salary increase.
On cross-examination, Mr. Cohen stated "[i]n dealing with people, I made it clear to anybodywho was serving as the acting that there was no pay increase" (Tr. 61). He further instructed Mr.Hoare to ensure that individuals considering such a position understood that there would be noadditional compensation. According to Mr. Cohen, as a general rule, when replacing office heads(such as an AAGIC) the new appointee was paid an amount equal to or lower than that of theirpredecessor to prevent salary "creep" (Tr. 59). He also indicated there is no "fixed" salary for theposition of AAGIC, which he described as "malleable" (Tr. 60).
Mark Mack, the current Executive Deputy Attorney General In Charge of Regional Offices, was claimant's last witness. He was employed by the Office of the Attorney General from January1, 1999 to December 31, 2006, and again from January 2011 to the present. He testified that he isresponsible for supervising regional office heads in all regions other than Albany and New YorkCity. Mr. Mack testified regarding the various factors which are taken into consideration whenselecting a candidate to fill a position, including the individual's salary demands, qualifications, andthe urgency of finding a candidate to fill the position.
The witness testified on cross-examination that there was no "fixed" salary for a regionaloffice head. He testified that although budgets were "friendly" during the administration ofGovernor Eliot Spitzer, they became "very difficult" in the years which followed (Tr. 72). Theeconomy was worsening in 2007 and "collapsed" in 2008, which had a significant impact on thebudget (Tr. 73). Mr. Mack discussed the various considerations used in selecting a regional officehead stating that, "for better or for worse", it is always a discretionary judgment (Tr. 75). Mr.Mack also recalled claimant's predecessor, Robert Colon, who he testified then-Attorney GeneralEliot Spitzer recruited personally. Notably, Mr. Colon was a 1992 graduate of Harvard Law School,appointed to the position of AAGIC on May 5, 2003 at a starting salary of $124, 803 (Exhibit 2).
This concluded the claimant's case in chief.
Defendant called Robert Pablo, Director of Human Resources for the NYS AttorneyGeneral's Office, as its only witness. Mr. Pablo has been employed in the Office of the AttorneyGeneral since 1998 and has held the position of Director of Human Resources since 2007. Thewitness identified Exhibit A as an excerpt of the Department of Civil Service Title and Salary Planfor classified civil service titles and explained that each such title is assigned certain characteristics. He testified that there is no designation for the positions of AAGIC or Bureau Chief because thesetitles are created internally. With the exception of the Attorney General, the remainder of theattorneys employed by the Attorney General's Office "are all assigned to an Assistant AttorneyGeneral position" (Tr. 85). Exhibit A reflects that the salary grade (SG) for the Assistant AttorneyGeneral position is "NS", meaning non-statutory. Mr. Pablo stated that for salary grades designatedNS, there is no set salary under the Civil Service Law. Exhibit A also indicates which titles arecompetitive, meaning a test and appointment under the Civil Service Law is required, and whichtitles are non-competitive, meaning, although there is no test, certain specified qualifications mustbe met before an appointment can be made. As to those in the exempt class, appointments are purelydiscretionary. The position of Assistant Attorney General is designated as an exempt, managementconfidential position for which there is no bargaining unit. Thus, salaries of assistant attorneysgeneral are discretionary determinations made by an executive designated to make such decisions. If the position is designated "NS", as is the position of Assistant Attorney General, salaries aredetermined only by reference to broad internal guidelines (Tr. 90).
Mr. Pablo identified Exhibit B as reflecting the executive salary guidelines within theAttorney General's Office for 2007 through 2008. The salary range reflected in Exhibit B for BureauChiefs is the same range as for AAGIC, according to the witness (Tr. 91-92). The salary ranges forthe AAGIC/Bureau Chief positions, as reflected in Exhibit B, are as follows: $116,206 to $153,087effective April 6, 2006; $117,006 to $153,887 effective April 5, 2007; $120,516 to $158,504effective April 5, 2007 (including a 3% retroactive COLA); and $124,131 to $163,259 effectiveApril 3, 2008. The range in effect as of April 3, 2008 continues to the present time. Reviewingclaimant's salary history from January 29, 2007, the date of his appointment to the position of ActingAAGIC, to the date of his retirement in July 2008 (Exhibit C), Mr. Pablo testified that claimant'ssalary was at all times within the aforementioned ranges for the title of AAGIC/Bureau Chief. Healso testified that the civil service records with respect to the claimant specifically show his positionwith the Attorney General's office as an exempt, non-statutory position for which salary is a matterof discretion.
Finally, Mr. Pablo identified Exhibit H as a listing of assistant attorneys general appointedas either an Acting Bureau Chief or Acting AAGIC for the period 2007 through 2010. During thistime, Mr. Pablo testified, there were no salary increases upon acceptance of an "Acting"appointment.
On cross-examination, the witness reiterated that raises were given at the discretion of theAttorney General and that he could not recall an instance in which the salary of an AAG fell outsideestablished ranges. On re-direct, however, he did concede that it was possible an AAG's salarycould fall below the range.
New York law is settled that absent "a constitutionally impermissible purpose, a statutoryproscription, or an express limitation in the individual contract of employment, an employer's rightat any time to terminate an employment at will remains unimpaired" (Murphy v American HomeProds. Corp., 58 NY2d 293, 305 [1983]). Thus, it is generally the rule that without an agreementestablishing an employment relationship for a fixed duration, "an employment relationship ispresumed to be a hiring at will, terminable at any time by either party" (Sabetay v Sterling Drug, 69NY2d 329, 333 [1987]). To the extent the law accords an employer an unfettered right to terminateemployment at any time, an obligation of good faith and fair dealing may not be implied because todo so would be inconsistent with the terms of the at-will employment relationship (id. at 335). Ofcourse, claimant does not contend that his employment was wrongfully terminated but that he wasdenied the wages to which he was entitled during the period he was appointed Acting AAGIC. However, a corollary of the at-will employment doctrine is the rule that the terms of such anemployment relationship may be modified at any time, " 'subject only to [claimant's] right to leave[his] employment if [he] found the new terms unacceptable' " (Dwyer v Burlington Broadcasters,295 AD2d 745 [3d Dept 2002], quoting Bottini v Lewis & Judge Co., 211 AD2d 1006, 1008 [3dDept 1995]). An employee who remains in the employment relationship following an alteration inthe terms of his or her employment is deemed to have assented to the modification and commencedemployment under the new terms (id.; see also Hanlon v Macfadden Publs., 302 NY 502, 505-506[1951]; Kronick v L.P. Thebault Co., Inc., 70 AD3d 648 [2d Dept 2010]; Bottini v Lewis & JudgeCo., 211 AD2d at 1008; General Elec. Tech. Servs. Co. v Clinton, 173 AD2d 86 [3d Dept 1991]). Claimant concedes that his employment was at will and that he accepted the position ofActing AAGIC without relying upon any promise of increased compensation. Thus, absent aconstitutional or statutory proscription, the claim for increased compensation must fail (Murphy vAmerican Home Prods. Corp., 58 NY2d at 305). In the instant matter, claimant contends that thesalary of an AAGIC was fixed by law pursuant to Executive Law § 62 and he was, therefore, entitledto the same salary previously paid to his predecessor, Mr. Colon, upon his appointment to theposition of Acting AAGIC by the Attorney General. Executive Law § 62 states the following:
"The attorney-general may appoint such assistant attorneys-general, deputyassistant attorneys-general and attorneys as he may deem necessary and fixtheir compensation within the amounts appropriated therefor. Wheneverdeputy or deputy attorney-general is referred to or designated in any law,contract or document such references or designations shall be deemed to referto and include assistant attorneys-general, deputy assistant attorneys-generalor attorneys appointed by the attorney-general."
The statute, on its face, does not confer upon one appointed to the position of Acting AAGICan entitlement to any particular salary, although claimant cites several cases to support a contraryinterpretation. In People ex rel. Church v Hopkins (55 NY 74 [1873]) the Court of Appealsinterpreted a statute which conferred upon a deputy appointed to the position of Superintendent ofInsurance all of the duties and powers of that office during the term of the Superintendent's absence. The Court observed that, once appointed, the deputy's acts, for all intents and purposes, were thoseof the Superintendent and held that he is, therefore:
"entitled to the emoluments of the office, the same as though appointedthereto by the governor, etc., as provided by statute. The duties andresponsibilities are the same. His acts thereafter are regarded as those of thesuperintendent, and not those of deputy. He is entitled to the salary of theformer and not to that of the latter office. The statute precludes the idea thatthe same person can hold both offices" (id. at 80 [emphasis added]).
Here, in contrast, claimant's appointment and the "emoluments" of the position of ActingAAGIC were not established by statute (id.). Both the appointment and the terms of compensation were discretionary within the amounts appropriated therefor and claimant admittedly accepted theposition without promise of increased compensation of any kind.
Grant v City of Rochester (79 AD 460 [4th Dept 1903], affd 175 NY 473 [1903]) is similarlydistinguishable. There, the salary of the Commissioner of Public Works was fixed, pursuant tostatute, by the Board of Estimate and Apportionment. As a result, the Court held that the salarycould not be reduced by agreement of the common council. No such similar facts avail the claimantin this case. Critically absent is the threshold statutory predicate fixing the salary of an AAGIC. Allof the evidence in this case indicates that the salary of assistant attorneys general, including that forthe position of AAGIC, was purely discretionary within certain internal, non-statutory ranges.
Claimant also cites Matter of Bookhout v Levitt (43 NY2d 612 [1978]), an article 78 case inwhich the petitioners, elected public officials, claimed entitlement to unused vacation time andaccumulated credit for unused sick pay. The Court observed that each of the public officials, "as anofficer of a municipality whose salary is fixed by law, is entitled to that salary, not as under acontract of employment, but as an incident of the respective office, and cannot be deprived of thatsalary so long as he or she rightfully holds that office" (id. at 618). Here, by contrast, the salariesof assistant attorneys general are not fixed by law. Notwithstanding claimant's contraryinterpretation, Executive Law § 62 unambiguously vests the Attorney General with discretionaryauthority to fix compensation within the amounts appropriated therefor subject only to the approvalof the Director of Budget (State Finance Law § 44 [1]).
Because each official was entitled to the compensation fixed by law, even during periods of sickness ortemporary incapacity, the Court held there was no base from which unused sick leave could be measured andpetitioners, therefore, were not entitled to credit for accumulated unused sick leave.
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By all accounts, claimant's salary was within the range of salaries established for the positionof AAGIC by the internal guidelines of the Office of the Attorney General (see Exhibits B and C). Moreover, the evidence further establishes that for most of the period of claimant's appointment tothe Acting AAGIC position, the State's financial affairs were such that discretionary raises wereeither placed on hold, or very rarely approved. The fact that claimant proffered evidence indicatingthat in years past, in particular 2006 (see Exhibit 10), certain individuals appointed to the positionof either Acting AAGIC or Acting Bureau Chief were paid an amount equal to that of theirpredecessor does not change the discretionary nature of the raises nor the fact that these salaries werenot fixed by law. Ample evidence indicates, for example, that in the years 2007 through 2010, 13individuals were appointed to the position of either Acting AAGIC or Acting Bureau chief withouta salary increase (Exhibit H). Moreover, in all 13 of these cases, the salaries of the appointees'predecessors were greater than that of the appointees who succeeded them in the "Acting" position(id.). Under these facts there is no basis for finding that the salary of an AAGIC is fixed by law.
To the extent claimant asserts a cause of action under a theory of implied contract, it fails asa matter of law. The law may not imply an obligation that would be inconsistent with the terms ofthe employment at will relationship, which includes the right to alter the terms of employment at anytime (see Sabetay v Sterling Drug, 69 NY2d at 335-336; cf. Wieder v Skala, 80 NY2d 628 [1992];Bottini v Lewis & Judge Co., 211 AD2d at1008). Claimant readily admits that no monetaryincentives were expressly provided nor did he rely upon any promises of future remuneration whenhe accepted the Acting AAGIC position. Given that the claimant's relationship with the defendantwas nothing more than that of an at will employee, terminable at any time, defendant was free tomodify the terms of employment subject only to the claimant's right to leave his employment if hefound the new terms objectionable.
Based on the foregoing, the claim is dismissed. All motions not otherwise decided hereinare denied.
Let judgment be entered accordingly.
April 10, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims