Opinion
No. 1663–16.
12-08-2016
In the Matter of the Application of Wayne SPENCE, as President of the New York State Public Employees Federation, AFL–CIO, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS, and Michael Volforte, as Interim Director of the Governor's Office of Employee Relations ; and the New York State Department of Transportation, and Matthew J. Driscoll, as Commissioner of the New York State Department of Transportation, Respondents.
New York State Public Employees Federation, AFL–CIO by John D. Svare, Esq., Associate Counsel, Office of General Counsel, Albany, Attorney for Petitioner. Eric T. Schneiderman, Attorney General of the State of New York, by Richard Lombardo, Esq., Assistant Attorney General, New York State Department of Law, Albany, Attorney for Respondents.
New York State Public Employees Federation, AFL–CIO by John D. Svare, Esq., Associate Counsel, Office of General Counsel, Albany, Attorney for Petitioner.
Eric T. Schneiderman, Attorney General of the State of New York, by Richard Lombardo, Esq., Assistant Attorney General, New York State Department of Law, Albany, Attorney for Respondents.
CHRISTOPHER J. McCARTHY, J.
For the reasons set forth below, Respondents are granted judgment dismissing the Petition.
In this proceeding, Petitioner (hereinafter, "Petitioner," or "PEF") seeks an order and judgment pursuant to CPLR Article 78:(1) directing enforcement of the September 25, 2015 Step 3 decision made by Respondent, Governor's Office of Employee Relations (hereinafter, "GOER," and "the GOER Step 3 Decision," respectively), pursuant to Article 17 (see Ex. A attached to Petition; Ex. A attached to Respondents' Affidavits [hereinafter, "Article 17"] ) of the 2011–2015 Public Employees Federation/State Agreement (hereinafter, the "PEF/State Agreement") and Civil Service Law § 61(2), which granted an out-of-title work grievance filed by PEF; (2) declaring the failure by Respondent, New York State Department of Transportation (hereinafter, "DOT") to enforce and comply with the GOER Step 3 Decision to be irrational, arbitrary, capricious, and contrary to law; (3) declaring that DOT has a duty to enforce and perform the requirements of the GOER Step 3 Decision; (4) directing Respondents to cease and desist from making out-of-title work assignments to State employees in the Motor Carrier Inspector (hereinafter, "MCI") title; and (5) granting Petitioner the costs and disbursements of this proceeding.
PEF has been certified by the New York State Employment Relations Board (hereinafter, "PERB"), pursuant to Civil Service Law § 200 et. seq. (hereinafter, the "Taylor Law"), to represent State employees in the Professional, Scientific, and Technical Services (hereinafter "PS & T") Unit of State employees (Petition, ¶ 6). Pursuant to the Taylor Law, State employees in the Motor Vehicle Inspector (hereinafter, "MVI") title have been placed in the PS & T Unit by PERB and PEF is their bargaining representative (id., ¶ 7).
Article 17 of the PEF/State Agreement prohibits the assignment of out-of-title work, except during temporary emergency situations that are expected to be of limited duration and which, either present a clear and imminent danger to persons or property, or are likely to interfere with statutory mandates or programs (see Petition, ¶ 10; Affidavit of Kelli–Ann Sardella, dated June 13, 2016 (hereinafter, "Sardella Affidavit"), ¶ 11; Affidavit of Richard A. Ahl, dated June 13, 2016 (hereinafter, "Ahl Affidavit"), ¶¶ 4–6; PEF/State Agreement, Articles 17.1, 17.2; Civil Service Law § 61[2] ). The Director of the Division of Classification and Compensation (hereinafter, "DCC") within the Department of Civil Service (hereinafter, "DCS") has the power to:
investigate all matters affecting the classification and compensation of positions, to hear and determine all complaints and grievances with respect to the classification and compensation of positions, and from time to time review the duties, responsibilities, qualification requirements and compensation of positions and to make such revisions in the classification or compensation of positions as changes in the state service may require.
(Civil Service Law § 118[2][b] ). PEF is permitted to file grievances directly with an agency's head at what is called a Step 2 grievance procedure, and may appeal an adverse determination to GOER (Petition, ¶ 13; Sardella Affidavit, ¶¶ 12–13; Ahl affidavit, ¶¶ 7, 9; PEF/State Agreement, Article 17.3[a], [c] ). Mr. Ahl has been an Assistant Director at GOER and the designee of GOER's Director for purposes of Article 17 since 2003, and is GOER's administrator of the PEF/State Agreement (Ahl Affidavit, ¶¶ 3, 9). He states that, pursuant to that agreement, PEF may file out-of-title work grievances on behalf of State employees, even those who are represented by another bargaining representative, such as the Civil Service Employees Association, Inc. (hereinafter, "CSEA"), provided PEF notifies that other bargaining representative of such grievance in the same manner as it notifies the State agency whose action is being grieved (id., ¶ 8; see PEF/State Agreement, Article 17.3[b] ).
Except for the period from January–October 2007.
On February 18, 2014, PEF submitted an out-of-title work grievance with DOT, alleging that MCIs in DOT's Region 8 (White Plains) were performing out-of-title duties that properly should have been assigned to MVIs (Petition, ¶ 15, and Ex. B attached; Sardella Affidavit, ¶ 15, and Ex. B attached to Respondents' Affidavits; Ahl Affidavit, ¶ 14). Specifically, PEF objected to MCIs performing "Commercial Motor Vehicle Inspections, Level 1 and Level 2" because they, allegedly, were "not qualified to conduct mechanical vehicle inspections on commercial motor vehicles," there is nothing in their job description that "authorizes them to perform that task and duty"(Petition, Ex. B, p. 2), and there is "no requirement for MCIs to demonstrate any experience in auto, truck or bus mechanics" (id., p. 3).
DOT denied the grievance, finding that the duties were appropriate for the MCI title (Petition, ¶ 16, and Ex. C attached; Sardella Affidavit, ¶ 18 and Ex. E attached to Respondents' Affidavits; Ahl Affidavit, ¶ 15). PEF appealed DOT's Step 2 decision to GOER and, on September 25, 2015, GOER sustained PEF's out-of-title work grievance and directed that DOT cease and desist from making such assignments (Petition, ¶¶ 17–19, and Exs. D & E attached; Sardella Affidavit, ¶ ¶ 19–23 and Exs. G & H attached to Respondents' Affidavits). Nevertheless, DOT continued to make such out-of-title assignments, which practice PEF objected to on several occasions (Petition, ¶¶ 20–21, and Exs. F & G attached). PEF wrote to GOER on November 30, 2015, advising GOER of DOT's continued out-of-title work assignments, and demanding that GOER instruct DOT to comply immediately with the GOER Step 3 Decision (id., ¶ 22 and Ex. H attached; Ahl affidavit, ¶ 19). PEF asserts that DOT continued to defy the decision and that GOER failed to enforce it (Petition, ¶¶ 23–24).
Respondents argue that: (1) the Petition fails to state a cause of action; (2) Petitioner failed to join a necessary party; and (3) that this proceeding is barred by the doctrine of mootness (Answer, ¶¶ 11–13).
Ms. Sardella, a Program Manager in the DCC of the DCS since 2002, provides written recommendations to GOER on behalf of the Director of DCC on out-of-title-work grievances made pursuant to Article 17 of the PEF/State Agreement (Sardella Affidavit, ¶ 1). She and Mr. Ahl note that, while MVIs are represented by PEF, MCIs are represented by CSEA (Sardella Affidavit, ¶ 3, n. 2; Ahl Affidavit, ¶ 14). Ms. Sardella and Mr. Ahl further assert that the MVI job duties that were declared to be out-of-title by the GOER Step 3 Decision may now be assigned to MCIs because the Director of DCC subsequently changed the classification standards applicable to such workers (Sardella Affidavit, ¶ 4; Ahl Affidavit, ¶ 29).
Ms. Sardella noted that classification standards are not static, are constantly reviewed and updated, and that, at the time of PEF's grievance, DCC already had commenced a comprehensive review of the classification standards for MCIs, which had last been revised in 2003 (Sardella Affidavit, ¶ 9, 16, 24). Mr. Ahl states that he learned of DCC's review in early January 2016 (Ahl Affidavit, ¶¶ 24, 25).
DCC revised and re-issued MCI classification standards on February 18, 2016 (hereinafter, the "2016 MCI Classification Standards") which, for the first time, specifically listed the performance of roadside motor vehicle inspections as an authorized duty of MCIs (Sardella Affidavit, ¶ 28 and Ex. J attached to Respondents' Affidavits). Those are the duties that were the subject of PEF's out-of-title work grievance, the GOER Step 3 Decision, and this Petition. The Petition was filed in the office of the Albany County Clerk on April 15, 2016. Ms. Sardella asserts that the new job duties are required by the Federal Motor Carrier Safety Act (hereinafter, "FMCSA") in order for MCIs to gain certification to conduct their primary safety audit duties (Sardella Affidavit, ¶ 29; see Affidavit of William B. Leonard, dated June 20, 2016, ¶¶ 8–11, 16).
Ms. Sardella further states that, CSEA, which represents MCIs, had no comments or objections to the 2016 MCI Classification Standards, but that PEF did submit comments in opposition to the changes (Sardella Affidavit, ¶ 32). In its letter dated March 31, 2016, PEF objected that:
these tentative classification standards include duties that MCIs are not qualified to perform. More precisely, the information under the DISTINGUISHING CHARACTERISTICS section is the MVI job description rather than that of the MCI .... Furthermore, the unrestricted performance of roadside inspections is stated several times under the ILLUSTRATIVE DUTIES section of this tentative classification standard.... There are four (4) different levels of "roadside inspections." Only MVIs are qualified to perform Level 1 mechanical inspections .... Therefore, we urge [DCC and DCS] to revise the tentative classification standard to prohibit MCIs from performing Level 1 mechanical roadside inspections.
(Exhibit L attached to Respondents' Affidavits [emphasis supplied] ).
Ms. Sardella also asserts that, after receipt of PEF's comments, DCC obtained additional information from DOT concerning FMCSA certification requirements for MCIs and DOT's training program/curriculum to prepare MCIs to perform those inspections (Sardella Affidavit, ¶ 33 and Ex. M attached to Respondents' Affidavits). DCC concluded that there was no basis for eliminating those duties from the 2016 MCI Classification Standards, and they were deemed final on May 11, 2016, after the conclusion of the contractually-mandated comment period (id., ¶ 34). Accordingly, DCC posits that the GOER Step 3 Decision is moot because the inspection duties that were the basis for PEF's grievance were found to be appropriate for MCIs to undertake, as reflected in the 2016 MCI Classification Standards, and further that a rational basis existed for such action, which was not arbitrary, capricious, or contrary to law (id., ¶ 39).
Ms. Sardella notes that, while the 2016 MCI Classification Standards were styled as "tentative" during the comment period, nevertheless, they took immediate effect upon publication in February 2016 and were fully valid from that date under both the Civil Service Law and the collective bargaining agreement between CSEA and the State (id., ¶ 31).
To the extent Petitioner argues that the authorization contained in the 2016 MCI Classification Standards for MCIs to perform "roadside inspections" does not encompass "mechanical inspections," the Court disagrees (see transcript of oral argument held at the Albany County Courthouse on September 27, 2016 [hereinafter, "Oral Argument"], pp. 8–10). As evidenced by Respondents' Affidavits discussed above, the agencies charged with promulgating the 2016 MCI Classification Standards thought they did so. It is clear from PEF's March 31, 2016 comment letter that Petitioner thought so too. As the portions quoted above demonstrate, PEF objected to the 2016 MCI Classification Standards precisely because MCIs were permitted to perform all levels of roadside mechanical inspections, including Level 1 inspections for which, PEF asserts, MCIs lack the requisite training. Thus, the Court concludes that the 2016 MCI Classification Standards authorize MCIs to perform all roadside inspections, including mechanical inspections and, specifically, Level 1 mechanical inspections.
Because those duties were the very subject of PEF's grievance and are the subject of this Petition, the Court agrees with Respondents that this matter now is moot. "It is a fundamental principle of our jurisprudence that the power of a court to declare the law only rises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" (Matter of Hearst v. Clyne, 50 N.Y.2d 707, 713 [1980] ). Moreover, "a prior finding of out-of-title work [by DCC] does not foreclose [it] from revising a classification specification to include this work, so long as its decision to do so is rationally based" (Matter of Criscolo v. Vagianelis, 12 NY3d 92, 98 [2009] ; see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974] ). Thus, as in Hart v. GOER (Index No. 6703–06 [Sup Ct Albany County, Dec. 14, 2006] (McCarthy, J) [attached to Respondents' Memorandum of Law] ), "the rights of the parties would no longer be affected by this Court's determination on the petition since the circumstances have now changed" after the promulgation and adoption of the 2016 MCI Classification Standards. The Court further determines that, to the extent Petitioner seeks a declaration that DOT violated the GOER Step 3 Decision from September 2015, until the 2016 MCI Classification Standards were adopted in February 2016, that dispute is entirely retrospective in character and, therefore, also is moot (see id. ).
Moreover, the Court concludes that an exception to the mootness doctrine does not apply in this instance. Such exceptions typically arise when there is: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (Matter of Hearst v. Clyne, supra at 714–715). As cases cited by the parties attest, similar controversies are litigated regularly so that the Court cannot find that the issues raised by this Petition typically evade review (see Sheedy v. Governor's Off. of Empl. Relations, 252 A.D.2d 832 [3d Dept 1998] ; Hart v. GOER, supra; Benson v. GOER, et al. (Index No.2019–02 [Sup Ct Albany County, Aug. 23, 2002] (Benza, J) [attached to Petitioner's Memorandum of Law] ). As such, moreover, they are not novel (see Matter of NRG Energy, Inc. v. Crotty, 18 AD3d 916, 920 [3d Dept 2005] ).
Furthermore, the prior finding in the GOER Step 3 Decision that MCIs were performing out-of-title work did not foreclose Respondents from revising the job duties in the 2016 MCI Classification Standards to include such duties because, the Court determines, they had a rational basis for the changes. To the Court's mind, the need to satisfy FMCSA's requirements so that MCIs could gain certification to conduct their primary safety audit duties provided ample basis to support Respondents' decision to promulgate and adopt the 2016 MCI Classification Standards. Thus, the Court cannot conclude that it was arbitrary and capricious to do so or contrary to law.
Likewise, the Court finds that Respondents' failure to implement the GOER Step 3 Decision, under the circumstances of this proceeding, was not arbitrary and capricious. Here, it appears that Respondents realized shortly after the GOER Step 3 Decision was issued that the classification standards for MCIs were under active review and that the publication of new job duties likely was forthcoming. In fact, the Petition itself was filed in April 2016, after the 2016 MCI Classification Standards were issued in February, 2016. Thus, from the very moment the Petition was filed with the Albany County Clerk, the 2016 MCI Classification Standards were already in full force and effect. Petitioner asserts that DOT cannot defy GOER's cease and desist order indefinitely in the hopes that the classification standards may change some day. That point is taken and, indeed, Respondents do not say otherwise (see Oral Argument, pp. 21–23, 33). In this instance, however, Respondents were not engaged in obstinate delay tactics in some vague hope that the classification standards might one day change. Rather, they knew that the out-of-title work at issue here was in the process of being included among the job duties in the 2016 MCI Classification Standards. That being the case, the Court concludes that this is not the test case by which to articulate some general rule establishing an outside date after which compliance with such out-of-title work determinations must be compelled.
Moreover, assuming, arguendo, that the Petition was not moot, then the Court agrees with Respondents that the MCIs in Region 8, who are represented by CSEA, and who potentially would be affected by any decision to enforce the GOER Step 3 Decision, are necessary parties to this proceeding (see Matter of Van Derwerker v. Village of Kinderhook Zoning Bd. of Appeals, 295 A.D.2d 676, 677 [3d Dept 2002] ; Civil Serv. Empls. Assn, Local 1000, AFSCME, AFL–CIO v. Pataki, 259 A.D.2d 826, 827–828 [3d Dept 1999], lv dismissed in part, denied in part, 93 N.Y.2d 993 [1999] ; CPLR § 1001[a] ). If the MCIs were to be prohibited from performing the roadside inspections to which PEF objects, it might jeopardize their ability to gain the FMCSA certifications discussed above. Thus, the Court determines that they should have the opportunity to be heard in any such proceeding that has the potential to adversely affect their livelihoods.
Accordingly, it is hereby,
ORDERED AND ADJUDGED that the Petition is dismissed.
This constitutes the Decision, Order and Judgment of the Court. The original Judgment is returned to counsel for Respondents, who is directed to enter it without notice and to serve Petitioner with a copy thereof with notice of entry. The Court will transmit a copy of the Decision, Order and Judgment and the supporting papers upon which it is based to the Albany County Clerk. The signing of this Decision, Order and Judgment, and delivery of a copy hereof shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.
SO ORDERED
Papers Considered:
Notice of Petition, dated April 15, 2016, Petition, dated April 15, 2016, Affidavit of Kevin Kemp, dated April 5, 2016, & Exhibits attached, Memorandum of Law, and Reply Brief;
Answer of Respondents, verified June 24, 2016, Affidavit of Kelli–Ann Sardella, dated June 13, 2016, Affidavit of Richard R. Ahl, dated June 13, 2016, Affidavit of William B. Leonard, dated June 20, 2016, & Exhibits attached, and Memorandum of Law;
Transcript of Oral Argument held in Albany County Supreme Court, Albany County Courthouse, 16 Eagle Street, Albany, New York, on September 27, 2016.