State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 518756 

________________________________

In the Matter of SUSAN M. KENT,

as President of the New York 

State Public Employees 

Federation, AFL-CIO, et al.,

Appellants, MEMORANDUM AND ORDER

v

ANDREW M. CUOMO, as Governor

of the State of New York, 

et al.,

Respondents.

________________________________

Calendar Date: November 19, 2014

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

__________

Lisa M. King, New York State Public Employees Federation,

AFL-CIO, Albany (Eric Kwasniewski of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Victor

Paladino of counsel), for respondents.

__________

Garry, J.

Appeal from that part of a judgment of the Supreme Court

(Teresi, J.), entered June 18, 2013 in Albany County, which

partially dismissed petitioners' application, in a proceeding

pursuant to CPLR article 78, to, among other things, review a

determination of respondent State Budget Director to pay overtime

to certain overtime-ineligible employees.

Petitioners Michael Ufko, Hugh Cirrito, Joan Bobier and

Heide-Marie Dudek (hereinafter collectively referred to as
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petitioners) are state workers employed, respectively, by

respondents Department of Transportation, Department of

Environmental Conservation, Department of Health, and Division of

Homeland Security and Emergency Services (hereinafter

collectively referred to as the employer respondents). 

Petitioners serve in positions that are categorized as ineligible

for overtime compensation (see generally 9 NYCRR 135.2). 

Respondent State Budget Director has discretionary authority to

grant overtime compensation to such employees when they "work

beyond a normal workweek during . . . an extreme emergency"

(Civil Service Law § 134 [6]). In October 2012, the Budget

Director acted pursuant to that authority by issuing a bulletin

(hereinafter bulletin G-1034) that declared Hurricane Sandy to be

an extreme emergency and authorized overtime compensation for

otherwise ineligible employees who worked more than 47.5 hours in

a week as a result of the storm. Petitioners worked more than 40

hours per week as a result of Hurricane Sandy, but pursuant to

bulletin G-1034, they were not compensated for weekly hours

greater than 40 and less than 47.5.

Petitioners – together with petitioner Susan M. Kent, the

president of petitioners' labor union – commenced this proceeding

arguing that the Budget Director was statutorily required to

compensate petitioners and all other similarly situated state

employees for all hours worked more than 40 per week as a result

of Hurricane Sandy. As pertinent here, Supreme Court partially

dismissed the application to the extent that it sought to require

this 40-hour threshold. Petitioners and Kent appeal.

Initially, we must determine whether the Budget Director's

interpretation of Civil Service Law § 134 (6) is entitled to

deference. This Court will defer to the governmental agency

responsible for the administration of a statute when

interpretation of the language at issue requires the agency's

expertise in the matters covered by the statute, but will accord

no such deference when "the question is one of pure statutory

reading and analysis, dependent only on accurate apprehension of

legislative intent" (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d

451, 459 [1980]; accord Matter of New York State Superfund

Coalition, Inc. v New York State Dept. of Envtl. Conservation, 18

NY3d 289, 296 [2011]; see Matter of New York Constr. Materials
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Assn., Inc. v New York State Dept. of Envtl. Conservation, 83

AD3d 1323, 1325 [2011]). Although the Civil Service Law provides

that the "workweek for basic annual salary" for employees who are

eligible for overtime shall not exceed 40 hours (Civil Service

Law § 134 [1]), overtime-ineligible employees are expressly

excluded from the coverage of that section, and nothing else in

the legislation defines the phrase "normal workweek" as used in

Civil Service Law § 134 (6) for such employees or prescribes the

number of hours contained in such a workweek. Under these

circumstances, in our view, the number of hours in the "normal

workweek" of an overtime-ineligible state employee necessarily

implicates the Budget Director's specialized knowledge of state

employment practices and "involves knowledge and understanding of

underlying operational practices or entails an evaluation of

factual data and inferences to be drawn therefrom" (Kurcsics v

Merchants Mut. Ins. Co., 49 NY2d at 459; see Matter of County of

Albany v Hudson Riv.-Black Riv. Regulating Dist., 97 AD3d 61, 67

[2012], lv denied 19 NY3d 816 [2012]; Matter of Posada v New York

State Dept. of Health, 75 AD3d 880, 883 n 2 [2010], lv denied 15

NY3d 712 [2010]). Accordingly, this Court will defer to the

Budget Director's determination and uphold it if it is not

irrational or unreasonable (see Kurcsics v Merchants Mut. Ins.

Co., 49 NY2d at 459; Matter of Howard v Wyman, 28 NY2d 434, 438

[1971]). 

Following the enactment of Civil Service Law § 134 (6),

respondent Division of the Budget (hereinafter DOB) issued a

bulletin stating that "[e]mployees normally ineligible to be

compensated for work in excess of 40 hours per week may, under

special emergency circumstances, be made eligible for

compensation for such hours of work" and, in order to receive

such compensation, "must work a number of hours clearly in excess

of the hours his [or her] position should reasonably require"

(1974 NY St Div of the Budget Bulletin Item G-140). The

47.5-hour threshold is not referenced in this bulletin, but a DOB

official averred by affidavit that it has been in place for many

years and was originally devised after consultation with other

agencies involved in emergency planning and service delivery

based upon such factors as the importance of delivering emergency

response services to citizens, fair treatment of otherwise

ineligible employees, and responsible use of taxpayer resources. 
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The DOB official noted that overtime-ineligible state employees –

who are typically highly compensated and function in professional

or managerial positions or other capacities involving the use of

skill or discretion – might routinely be called upon in

nonemergency situations to work more than 40 hours in a week

without additional compensation. The 47.5-hour threshold takes

this factual assessment into account by adding an additional full

workday of 7.5 hours to the 40-hour workweek. The record reveals

that the 47.5-hour threshold has been applied in other emergency

circumstances, most recently including Hurricane Irene and

Tropical Storm Lee in late 2011. Accordingly, the threshold

cannot be said to be arbitrary on the ground that it departs

unreasonably from DOB's approach in other emergency situations

(compare Matter of Welch v Constantine, 194 AD2d 1008, 1011

[1993]). As we find nothing that is otherwise irrational or

unreasonable in the Budget Director's imposition of the 47.5-hour

threshold for work related to Hurricane Sandy, the determination

must be upheld (but see Matter of Roberts v Cuomo, 42 Misc 3d

1209[A], 2013 NY Slip Op 52264[U], *6 [Sup Ct, Albany County

2013]). 

The statutory language supports this determination. The

Civil Service Law specifically requires that "the workweek for

basic annual salary" for employees who are eligible for overtime

shall not exceed 40 hours, and provides that eligible employees

required to work overtime are to be compensated for every weekly

hour over 40 at a rate of 11⁄2 times the employee's regular hourly

rate of pay (see Civil Service Law § 134 [1]). The Legislature

could have included similarly specific directions in the

statutory provisions pertaining to emergency overtime

compensation for overtime-ineligible employees, but did not do

so. These provisions instead leave to the discretion of the

Budget Director the issues of whether to grant emergency overtime

compensation and, within certain statutory limits, at what rate

such compensation should be paid (see Civil Service Law § 134

[5], [6]). Notably, the statutory provisions pertaining to

overtime-ineligible employees make no reference to a 40-hour

workweek, while those pertaining to overtime-eligible employees

do not use the phrase "normal workweek" that appears in the

provisions pertaining to ineligible employees (see Civil Service

Law § 134 [1], [5], [6]). The Legislature is presumed to have
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acted intentionally in using different language for the two

classes of employees, in failing to define a "normal workweek"

for overtime ineligible employees in terms of a specified number

of hours, and in according discretion to the Budget Director with

regard to the payment of emergency overtime compensation for

employees who are ordinarily ineligible for overtime (see Matter

of New York Constr. Materials Assn., Inc. v New York State Dept.

of Envtl. Conservation, 83 AD3d at 1328).

Next, petitioners and Kent contend that the employer

respondents acted arbitrarily and capriciously and were

irrational in refusing to request that the Budget Director

authorize payment for hours beyond 40 per week worked as a result

of Hurricane Sandy. However, Civil Service Law § 134 (6) grants

no authority to any official other than the Budget Director to

determine whether and how much emergency overtime compensation is

to be paid to otherwise ineligible employees, and here the Budget

Director had not failed or refused to exercise this statutory

authority (compare Matter of Welch v Constantine, 194 AD2d at

1010-1011). On the contrary, the payment of emergency overtime

compensation for work related to Hurricane Sandy had been

authorized and the employer respondents had been advised that no

such compensation would be paid for weekly hours greater than 40

but less than 47.5. Under these circumstances, they did not act

irrationally in failing to request such compensation.

Lahtinen, J.P., Rose and Devine, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court