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This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 23 

In the Matter of New York State 

Correctional Officers and Police 

Benevolent Association, Inc., et 

al.,

 Appellants,

 v.

Governor's Office of Employee 

Relations, et al.,

 Respondents.

Erin N. Parker, for appellants.

Laura Etlinger, for respondents.

MEMORANDUM:

The order of the Appellate Division should be affirmed,

with costs.

Petitioner Thomas Tierney was employed by respondent

Office of Mental Health (OMH) as a Safety and Security Officer 2

(SSO2). He was assigned to the Hudson River Psychiatric Center

in Dutchess County and represented by petitioner New York State

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Correctional Officers and Police Benevolent Association, Inc.

(NYSCOPBA). The position of SSO2 is a salary grade 15 position. 

In June 2011, when the Chief Safety and Security Officer (CSSO)

of the Hudson River facility transferred to another facility,

Tierney was advised that he would be serving as Acting CSSO. He

served in that capacity until the facility closed in January

2012.

In August 2011, Tierney filed an out-of-title work

grievance with OMH, in accordance with the three step review

process as outlined in the collective bargaining agreement, 

seeking additional compensation (a salary grade of 20) for the

duties he performed as Acting CSSO. In his grievance form, he

claimed that he was performing the work of a CSSO by overseeing

day to day operations, attending committee and sub-committee

meetings, compiling Environment of Care Committee reports,

overseeing vendors, generating reports, conducting TIMR

conference calls,1 monitoring and tracking overtime and adjusting

day schedules to minimize usage. He also stated that he

supervised two Safety and Security Officers (SSO1s) and one SSO1

trainee. 

Step 1 of the grievance process, which is review at the

facility level, is customarily conducted by the CSSO. Because

Tierney was acting in that capacity, this step was bypassed. At

1

TIMR refers to testing, inspection, maintenance and

repair/replacement contracts.

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Step 2, which was OMH's review of the grievance, OMH did not

dispute that Tierney was performing the tasks detailed in his

grievance form. OMH sustained the grievance and noted that under

the terms of the NYSCOPBA contract, monetary awards for out-oftitle grievances can only be made retroactive to 15 calendar days

prior to the certified mailing of the grievance. Because,

according to OMH, "[o]nly the Director of the Governor's Office

of Employee Relations [GOER] has the authority to issue monetary

awards," OMH requested that the Director of Classification and

Compensation at the Department of Civil Service (DCC) affirm the

decision and take appropriate action. 

 At Step 3 of the review, where GOER seeks an opinion

from DCC as to whether the grieved duties are substantially

different from those appropriate to the title to which the

employee is certified, DCC undertook its own comparison of the

duties and responsibilities of CSSOs and SSO2s, and, finding that

the grieved duties were consistent with the SSO2 title, denied

the grievance. Specifically, it found that SSO2s are working

supervisors responsible for all the activities of SSO1s, and that

the duties performed by Tierney as Acting CSSO were consistent

with those activities. DCC also detailed some of the duties that

are assigned to CSSOs and that would have been out-of-title for a

SSO2 but were not included in Tierney's grievance, such as

supervising and directing all safety and security personnel,

reviewing all marginal and unsatisfactory employee ratings,

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developing protocols and education programs that address a safe,

secure and therapeutic environment, maintaining safety equipment

and records, and directing the enforcement of the New York State

Uniform Fire Prevention and Building Code. GOER adopted the

findings of DCC and denied the grievance. 

In his article 78 petition, Tierney alleged, in sum and

substance, that in addition to the duties he included in his

grievance form, he performed the out-of-title duties detailed by

DCC in its decision. Those additional duties were not included

in the grievance form and apparently were not considered by OMH. 

Accordingly, they were not considered by the motion court or the

Appellate Division (see Rizzo v. New York State Div. of Housing

and Community Renewal, 6 NY3d 104, 110 [2005]["judicial review of

administrative determinations is confined to the facts and record

adduced before the agency."]). The motion court concluded that

GOER's determination that petitioner's responsibilities as an

acting CSSO were substantially similar to the job description of

a SSO2 was not arbitrary and capricious and dismissed the

proceeding. A divided Appellate Division affirmed (126 AD3d 1267

[3d Dept 2015]), and we now affirm. 

Where respondents' determination "is supported by a

rational basis, and is neither arbitrary nor capricious, it will

not be disturbed" (Matter of Nehorayoff v Mills, 95 NY2d 671, 675 

[2001]). Civil Service Law § 61 (2) proscribes the assignment of

an employee to "perform the duties of any position unless he [or

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she] has been duly appointed, promoted, transferred or reinstated

to such position" other than when those duties are performed on a

temporary emergency basis. There was evidence in the record to

support the determination that Tierney was performing duties that

were consistent with, and a natural extension of, his title as a

SSO2. Thus, here, we do not have the combination of out-of-title

work and the work being performed for an extended period of time

(cf. Matter of Sprague v Governor's Off. of Empl. Relations, 13

AD3d 849 [3d Dept 2004]). 

The conclusion reached by DCC and adopted by GOER is

not arbitrary or capricious simply because it differs from the

conclusion of OMH. In sum, GOER's determination that Tierney was

performing duties consistent with his position as a SSO2 and was

not performing the key distinctive duties of the CSSO position is

rationally based. 

* * * * * * * * * * * * * * * * *

Order affirmed, with costs, in a memorandum. Chief Judge DiFiore

and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia

concur.

Decided March 29, 2016

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