Allen v New York State Div. of the Budget

[*1] Allen v New York State Div. of the Budget 2009 NY Slip Op 51462(U) [24 Misc 3d 1215(A)] Decided on June 5, 2009 Supreme Court, Albany County Egan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 5, 2009
Supreme Court, Albany County

Richard S. Allen, ERIC J. BALON, KEVIN M. BARNAS, JAMES BARNS, GEORGE B. BROWN, RODNEY CAMPBELL, ROBERT CROSWELL, STEPHEN FARAGO, JOHN FAY, MARK FLEMING, ROBERT L. GALLETTO, STEVEN C. GRAAP, CHARLES E. GUESS, MARK W. HASKELL, JOHN R. HIBSCH, LARRY JACKMAN, ERIC C. JANIS, MARK KOSS, ROBERT U. KREPPEIN, JAMES LAND, MARK A. LESTER, DANIEL N. LYONS, KEVIN G. MOLINARI, STEVEN A. NIGRELLI, ROBERT NUZZO, RICHARD OYER, JR., KENNETH ROGERS and EUGENE J. STANISZEWSKI, Petitioners,

against

New York State Division of the Budget, Respondent.



10421-08



POLICE BENEVOLENT ASSOCIATION OF THE

NEW YORK STATE TROOPERS, INC.

Richard E. Mulvaney, Esq., General Counsel

Attorneys for Petitioners

(Maria B. Morris, Esq.)

120 State Street

Albany, New York 12207

ANDREW M. CUOMO

Attorney General of the State of New York

Attorneys for Respondent, New York State Division of Budget

(Christopher W. Hall, Esq.)

NYS Department of Law -The Capitol

Albany, New York 12224

John Egan, J.

On April 2, 2006, Ralph B. Phillips (hereinafter "Phillips"), an inmate at the Erie County Correctional Facility in Alden, New York, escaped from custody. On June 10, 2006 New York State Police Trooper Sean Brown was shot and wounded while conducting a traffic stop in Chemung County, and Phillips, who was still at large, was identified as the likely suspect. An extensive manhunt for Phillips then ensued over the next three months in western New York and northern Pennsylvania. On August 31, 2006, in Chautauqua County, Phillips shot Troopers Joseph Longobardo and Donald Baker, resulting in the death of Trooper Longobardo, and serious injuries to Trooper Baker. Eight days later, on September 8, 2006, Phillips was captured in northern Pennsylvania. He is currently in the custody of the New York State Department of Correctional Services at the Clinton Correctional Facility in Dannemora, New York as a result of his plea of guilty to aggravated murder and attempted aggravated murder in Supreme Court, Chautauqua County. People v. Phillips 56 AD3d 1163 (4th Dept.,2008). This proceeding involves a request for overtime compensation to certain supervisory officers of the New York State Police who participated in the Phillips manhunt and a subsequent decision by the New York State Division of Budget (hereinafter "Division of Budget" or "respondent") to modify, in part, that request.

Specifically, petitioners bring this CPLR Article 78 proceeding seeking an Order vacating the decision of the Division of Budget, dated August 25, 2008 (modified on December 30, 2008) which 1) denied additional overtime compensation to Majors and Captains of the New York State Police; 2) amended the overtime rate calculations for Lieutenants; and 3) permitted overtime compensation for Lieutenants for only certain days. Petitioners assert that the Division of Budget's determination was arbitrary, capricious and an abuse of discretion. The Division of Budget opposes the petition [FN1]

The 28 petitioners serve as Lieutenants, Captains and Majors in the New York State Police. Pursuant to the Collective Bargaining Agreement (hereinafter "CBA") negotiated between the State of New York and the Police Benevolent Association of the New York State Troopers, Inc. (hereinafter "PBA"), Lieutenants, Captains and Majors receive annual salaries and an overtime premium, and are not ordinarily eligible to receive overtime payments. In certain emergency situations, however, the Civil Service Law does permit any otherwise ineligible New York State employee to be paid overtime, and that is the crux of this proceeding.

Civil Service Law §134(6) provides, as follows:

Notwithstanding any other provisions of law to the contrary, any employee in any title or individual position ineligible to accrue overtime credits under the rules and regulations promulgated by the [*2]director of the budget pursuant to the provisions of this section who is required to work beyond a normal workweek during a period deemed by the director of the budget to be an extreme emergency, may be granted additional compensation upon the approval of and at a rate established by the director of the budget; provided, however, that such additional compensation shall not exceed one and one-half times the hourly rate of pay received by such employee in his regular position. Such compensation shall be in addition to, and not be a part of, the employee's basic annual salary and shall not affect or impair any increment or other rights or benefits to which the employee may be entitled under the provisions of this chapter; provided, however, that any differential payable pursuant to this subdivision shall be included as compensation for retirement purposes.

In furtherance of §134(6), the respondent has enacted Budget Policy and Reporting Manual Item G-140 (hereinafter "Item G-140") to set forth an internal procedure for identifying whether overtime for an otherwise ineligible employee should be paid. Item G-140, entitled "Compensation During Emergency Situation For Those Ineligible for Overtime" provides, in pertinent part:

1.Purpose, Scope and Regulations

....Employees 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. Payment may be made only if the period during which the work is performed is deemed to be an extreme emergency by the Director of Budget. ....

2.Criteria for Determining What Constitutes an Extreme Emergency

a.Duration of the Emergency

To be deemed an emergency for purposes of paying overtime compensation, an emergency situation must generally be of not less than three days' duration. The policy is not intended to provide compensation for emergencies of one to two days' duration.

b.Number of Overtime Hours Required

To be compensated for emergency overtime, an individual must work a number of hours clearly in excess of the hours his position should reasonably require.

c.Necessity to Work

To be compensated for emergency overtime work an individual must have been specifically directed by his supervisor to perform certain duties for the number of hours for which payment is requested. This is to avoid the situation in which an employee might volunteer to wait around during an emergency when his services have not been requested and are not required.

d.Nature of the Emergency

[*3]An emergency is a situation that is nonrecurring and one that cannot be forestalled or generally anticipated in advance.....

3.Procedure for Deeming an Extreme Emergency

Any request to have a situation designated as an extreme emergency must be forwarded to the Director of the Budget. Upon receiving the Budget Director's approval, a certificate of approval will be sent to the agency requesting the overtime, informing them what the request has been approved and listing the specific position for which the approval was granted, the hours involved, and the rate to be paid for each position....

4.Compensation Rate for Emergency Overtime Hours

The rate to be paid will be decided on a case-by-case basis, but in no event shall it exceed one and one-half times the rate paid employees in the extra longevity step of grade 22. In only the most exceptional cases will employees in grade 31 or above be compensated for work in excess of 40 hours per week.

On June 5, 2007, pursuant to Item G-140, the New York State Police submitted a request for 91 days of overtime compensation for certain "Commissioned Officers normally ineligible to be compensated for overtime". In a letter bearing that date, William J. Callahan, Administrative Director of the New York State Police stated that "[t]he requested waiver is as a direct result of the deployment personnel to Western New York after the shooting of Trooper Sean Brown on June 10, 2006 and ending on September 9, 2006 with the arrest and arraignment of Phillips." In that correspondence, Mr. Callahan stated that the deployment was essential in the capture of Phillips and meets the criteria defined under Item G-140. Mr. Callahan stated that each of the commissioned officers was ordered by a superior officer to perform nonrecurring, unanticipated law enforcement in connection with the Phillips manhunt. Mr. Callahan submitted a chart detailing the hours worked by each Major, Captain and Lieutenant during the detail, and advised that each commissioned officer was interviewed by a panel consisting of himself, Lieutenant Colonel Bruce Washco and Inspector Steven Smith to ensure that the same overtime criteria was used in determining the number of hours eligible. The Division of State Police also submitted to the Division of Budget, a schedule, which provided a breakdown, by day and member, of the hours, assignments and tour status of each of the petitioners seeking overtime compensation.[FN2] Mr. Callahan calculated the rate of overtime to be limited to the rate of a Lieutenant in the amount of $84.21.[FN3] In furtherance of its request for overtime [*4]compensation, the Division of State Police submitted to the Division of Budget, a time line of significant events that occurred during the manhunt.[FN4]

By correspondence dated August 25, 2008, the Division of Budget approved the State Police's request for overtime compensation, but with conditions. The Division of Budget determined that "[o]fficers in the titles of Major and Captain will not receive additional overtime compensation, as they are the upper-echelon management leaders in the Division and are appropriately compensated for such events...."[FN5] For the 15 remaining Lieutenants, the Division of Budget amended the overtime rate to $80.14 by reducing the 20 year longevity figure ($10,000) to a 15 year longevity figure ($7,500) and eliminating the Command and Expanded Duty pay. Finally, the Division of Budget only approved overtime for 29 days, including June 10, 2006 through June 18, 2006, June 27, 2006, June 28, 2006, July 10, 2006 through July 16, 2006, August 19, 2006 and August 31, 2006 through September 8, 2006.

In support of their petition, the petitioners argue that the Division of Budget's determination of August 25, 2008 was unexplained, arbitrary, capricious and an abuse of discretion. Petitioners point to the Division of Budget's grant of overtime compensation, in toto, paid to civilian pilots assigned to the Aviation Unit during the Phillips manhunt. Petitioners contend that the Division of Budget's determination granting such overtime compensation is inconsistent with its August 25, 2008 determination with respect to commissioned officers. Petitioners also point to previous approvals of overtime compensation paid to commissioned officers after Hurricane Katrina [FN6] and the World Trade Center attacks [FN7]. Likewise, petitioners contend that the Division of Budget's determination granting such overtime compensation is inconsistent with its August 25, 2008 determination with respect the Phillips manhunt.

Finally, the petitioners argue that Division of Budget's approval of 29 days of overtime compensation was arbitrary. Petitioners assert that the commissioned officers engaged in the same activities on both credited and non-credited days. Petitioners assert that the hours of overtime compensation granted to Lieutenants during those 29 days are irrational since the days that overtime [*5]was granted, does not coincide with the documentary evidence submitted by the Division of State Police.[FN8]

In opposition to the petition, respondent asserts that its determination of August 25, 2008 was neither arbitrary nor capricious.[FN9] Civil Service Law §134(6), respondent argues, does not require payment of overtime compensation to commissioned officers, but if overtime is paid, §134(6) provides that the Director of the Division of Budget determines which commissioned officers receive overtime compensation and at what rate. Item G-140 sets forth factors to be considered by the Director, respondent asserts, in exercising his discretion to award overtime compensation. These criteria, respondent argues, take into account the fact that employees covered are not otherwise eligible for overtime compensation because they are positions where it is reasonably expected that they will work in excess of their established hours to fulfill the responsibilities of their positions. Respondent cites to Item G-140, paragraph 4, which provides that, in only the most exceptional cases will employees in grade 31 or above be compensated for work in excess of 40 hours per week. Respondent states that, in September 2006, the grade 31 salary for employees in the Professional, Scientific and Technical Services bargaining unit (PS & T) ranged from $87,643 to $105,984. Respondent claims that "upon information and belief" commissioned officers are not graded positions. Respondent asserts that, in September 2006, Lieutenants received salaries that ranged from $105,034 to $106,390, Captains received salaries that ranged from $112,026 to $115,474 and Majors received salaries that ranged from $119,379 to $120,737, which were all salaries significantly higher than the highest salary paid to a PS & T grade 31 employee.[FN10] Respondent also argues that, while Lieutenants engage in direct supervision of uniformed officers and may be at the incident scenes, Captains and Majors do not engage in such direct supervision. (See, NYS Administrative Manual - Regulation 4 [Duties of Members Assigned to a Troop]).

Respondent also argues that, because each overtime decision is determined on a case-by-case basis, whether overtime compensation was approved for commissioned officers in prior cases, and how that overtime was calculated, is irrelevant. In any event, respondent asserts, the requests for overtime compensation as a result of Hurricane Katrina and the World Trade Center attacks are distinguishable, as emergencies were declared for each, which had national (and international) repercussions. Moreover, respondent asserts that in those prior cases, officers were deployed to New York City and the State of Louisiana, in areas where they do not routinely engage, and the State of New York was able to apply for federal reimbursement for costs incurred. [*6]

By contrast, respondent asserts, the Phillips manhunt mostly occurred in New York State and was an expected aspect of State Police duties. Respondent concedes that the Phillips manhunt "presented significant special circumstances, as the State Police themselves had been a target", and because Phillips had been added to the Federal Bureau of Investigation's list of most wanted criminals. Respondent asserts that these factors qualified "certain days", which posed a high level of danger, to constitute an "extreme emergency". The Division of Budget's determination, respondent contends, distinguished between periods of "peak work loads" which is not compensable and emergency conditions, including days when Phillips committed crimes and/or was sighted.

Respondent argues that the rate of overtime compensation approved was appropriate based on the terms of the CBA, which provides that the salary of a Lieutenant be substituted for that of a grade 22 for the purposes of calculating overtime under Item G-140. Because the precise extra longevity step to be used is not specified in the CBA, the Division of Budget used the 15 year longevity figure. Respondent asserts that, under the Civil Service Law, it is the Director of the Division of Budget who is to determine the overtime compensation rate.

I start my analysis with the recognition that in an Article 78 proceeding, judicial review is limited to a determination of whether the administrative decision is arbitrary and capricious, or lacks a rational basis. Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County 34 NY2d 222 (1974); Solomon v. Administrative Review Bd. for Professional Medical Conduct, 303 AD2d 788 (3rd Dept. 2003); Matter of Tockwotten Assoc. v. New York State Div. of Hous. & Community Renewal, 7 AD3d 453, 454 (1st Dept. 2004); Red Apple Child Dev. Ctr. v. Chancellor's Bd. of Review, 307 AD2d 815 (1st Dept. 2003). Where such rational basis exists, an administrative agency's construction and interpretation of its own regulations are entitled to great deference. Matter of Salvati v. Eimicke, 72 NY2d 784, 791 (1988); Matter of Arif v. New York City Taxi & Limousine Commn., 3 AD3d 345, 346 (1st Dept. 2004). The court's role is limited; it may not disturb factual determinations, (Heintz v. Brown, 80 NY2d 998 (1992)), nor weigh the evidence, (Pell v. Board of Ed. , supra, at 230), nor substitute its judgment for that of the administrative official. Id. Moreover, "[j]udicial review of administrative determinations is confined to the facts and record adduced before the agency". Matter of Yarbough v. Franco, 95 NY2d 342, 347 (2000).

My review of the record leads me to the conclusion that the Division of Budget's decision to modify and deny a portion of the Division of State Police's request for emergency overtime was not rationally based.

Historically, Civil Service Law §134 has been invoked to allow overtime compensation to otherwise ineligible State Police Officers on numerous occasions in the last 20 years. These instances include: The confrontation at the St. Regis Mohawk Indian Reservation in Franklin County in 1989; the Ganienkeh Indian Encampment on Clinton County in 1990; the Thruway Bridge Collapse in Schoharie County in 1987; the World Trade Center Attacks in New York County in 2001; and the Hurricane Katrina flooding in New Orleans, Louisiana in 2005. In some of these occasions, approval for overtime compensation came only after litigation against the State Police or Division of Budget.[FN11] [*7]Notably, in this case, the affected officers do not bring this action against the Division of State Police because it is that Division which determined that the Phillips manhunt was an extraordinary effort deserving overtime compensation.

The Phillips manhunt can hardly be described as routine. Over the course of the summer of 2006, an escaped prisoner led authorities on a multi-county, two state crime rampage, during which he shot 3 State Troopers in two separate incidents. Phillips was clearly a threat to both law enforcement and the general public, and to contain this threat, the Division of State Police made decisions to deploy extraordinary amounts of personnel, from the rank of Trooper to Major, to western New York State to assist in the search.

The Division of Budget does have a role to play in the routine expenditure of public funds by the State Police. Proposals to purchase office furniture, advertise for bids for new police cars, construct new facilities, or hire new personnel are all decisions which certainly invite the Division of Budget's advice, debate and input. This is because, in each such case, the luxury of time exists, and no final decision to proceed need be made until the various levels of administrative approvals are obtained. It is expected that the majority of State Police expenditures would fall into this category.

Emergency situations are another matter. In assigning to the Division of State Police and its Superintendent the duty to respond to emergencies, we must necessarily pair with that duty a wide degree of latitude in making operational decisions. Unlike the examples above, decisions by the State Police in the Phillips manhunt, such as how many and of what rank of Troopers to send to western New York, how many roadblocks should be established, and who should be in charge of each detail, are not amenable to budgetary pre-approval.

Well-meaning people will always be able to argue after the fact that only 15 Troopers should have been sent to one area when 20 were, that a Sergeant should have led a detail, not a Lieutenant, or that a Captain could have done the work that a Major did, because hindsight is always 20/20. Aided now by the historical record of what days Phillips was sighted, it is easy to opine from a desk months later that there was no emergency on those days when he was not sighted, and therefore, no need for supervisor overtime. Under this logic, as soon as a day passed without a sighting, all of the supervisors would have been sent home to await a further sighting before funding was authorized to send them back.

The Division of Budget conceded that the manhunt "presented significant special circumstances, as the State Police themselves had been a target", and because Phillips had been added to the FBI's list of most wanted criminals. The potential for danger to both police officers and members of the public had been amply demonstrated when Troopers Brown, Baker and Longobardo were all shot. These incidents were in addition to other crimes committed by Phillips throughout the manhunt. There is no indication that on the days Phillips was not sighted or on days Phillips did not commit crimes, that the State Police were no longer targets, that the "extreme emergency" of the situation subsided, or that the officers were directed to cease their efforts in finding Phillips. It is arbitrary to determine that only certain days throughout this manhunt were deemed extreme emergencies, especially since the situation satisfied the criteria in Item G-140, and the threat involved continued throughout the manhunt until Phillips was apprehended.

The State Police devised a careful, reasoned approach to evaluating overtime requests in this case and assembled a 3 person panel to screen the results. Management in the State Police [*8]determined that 1) the manhunt lasted for over three months, clearly more than the three days' duration criteria; 2) the assignments were based on intelligence information gathered during the course of the investigation; 3) each of the Commissioned Officers were ordered by a superior officer to perform law enforcement duties; and 4) personnel and aviation assets were sent to western New York State in a deployment that was nonrecurring and could not be forestalled or anticipated in advance.

I am satisfied that this determination by the Division of State Police meets the requirements of Civil Service Law §134(6), and that the requested overtime should be paid, and therefore vacate the determination of the Division of Budget insofar as it sought to partially deny the request.

Petitioners have failed to prove that respondent's calculation of the rate of overtime pay was arbitrary and capricious. Item G-140 provides that the rate of overtime to be paid will be decided on a case-by-case basis, but in no event shall it exceed one and one-half times the rate paid employees in the extra longevity step of grade 22. Pursuant to the CBA, the annual salary of a Lieutenant has been substituted for the grade 22 salary for purposes of calculating overtime, and "the rate of additional compensation paid pursuant to this paragraph shall not exceed one and one-half times the hourly rate derived therefrom." There is no indication from the record that any longevity figure is to be calculated into the overtime rate for commissioned officers. Likewise, neither the CBA nor Item G-140 provides that command pay or extended duty pay be included in the overtime calculation. Other than claiming that the respondent's August 25, 2008 rate determination is inconsistent with prior overtime rate calculations (Hurricane Katrina), and that, "upon information and belief", the calculations presented with respect to this case are "standard", petitioners cite to no errors in the respondent's rate calculation. In light of Item G-140 which provides that "the rate of overtime to be paid will be decided on a case-by-case basis", and in light of petitioners' failure to identify any error in respondent's rate calculation, the Court does not find that the respondent's rate determination ($80.14 ) was arbitrary.

Accordingly, it is hereby

ORDERED that the petition is granted insofar as the determination of the Division of Budget dated August 25, 2008, which limits the days overtime compensable, is hereby vacated; and it is further

ORDERED that the petition is granted insofar as the determination of the Division of Budget dated August 25, 2008, which denies overtime compensation to Majors and Captains, is hereby vacated; and it is further

ORDERED that the petition is denied insofar as it seeks vacatur of the determination of the Division of Budget dated August 25, 2008, calculating the rate of overtime in the amount of $80.14.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the counsel for Petitioners. The signing of this Decision and Order 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.

IT IS SO ORDERED.

John C. Egan, Jr., J.S.C.

Dated: _______________ [*9]

Albany, New York

The Court considered the following papers:

By Petitioners:

Notice of Petition, dated December 22, 2008;

Verified Petition, dated December 22, 2008, with Exhibits A-P.

By Respondent New York State Division of the Budget:

Answer, dated March 6, 2009;

Affidavit of Diana Valenchis, sworn to on March 6, 2009, with Exhibits 1-11;

Memorandum of Law, dated March 9, 2009. Footnotes

Footnote 1:Oral arguments were held on March 20, 2009.

Footnote 2:For example, on June 10, 2006 Captain Brown was recalled for 16.5 hours based on "Recall/Cummings PIAA." Likewise, on June 10, 2006, Lieutenant Nigrelli worked 5.5 hours of overtime to "Setup a Lead Desk". On June 10, 2006, Major Molinari worked 12 hours of overtime in connection with the "Manhunt". Other activities involved in the Phillips manhunt included, among others, aviation support, "24 hr CP", officer coverage, Phillips sightings, "Called in due to shooting", "Arrest Family", and "burglary".

Footnote 3:This overtime rate was calculated by taking the base salary of a uniformed Lieutenant ($105,024) plus Command Pay ($281), plus Expanded Duty Pay ($2,652), plus 20 year longevity ($10,000), minus Premium Overtime ($5,685 ["Premium Overtime was included in base pay as part of last Interest Arbitration Agreement. The value of that payment in terms of the current base salary is computed as follows: 2002 Premium Overtime $4,903 x 6.09% = $5,202 x 6.09 = $5,519 x 3.0% = $5,685]), times .00075.

Footnote 4:For example, the time line set forth dates on which significant events occurred, including that, on June 10, 2006 Trooper Brown was shot, and on June 27, 2006 and June 28, 2006 there were possible Phillips sightings. The time line of events lists activities and sightings occurring from June 10, 2006 until Phillips' capture on September 8, 2006.

Footnote 5:Two (2) Majors and eleven (11) Captains were denied overtime compensation.

Footnote 6:The petitioners assert that overtime compensation for commissioned officers was granted, in toto, as a result of Hurricane Katrina. The petitioners note that the rate calculation used and approved in that case was the 20 year longevity figure.

Footnote 7:The petitioners assert that overtime compensation for commissioned officers was granted, in toto, as a result of the World Trade Center attacks.

Footnote 8:Specifically, petitioners note that Lieutenant Galletto was granted 86.25 hours of overtime, yet he only worked 11.50 hours of overtime during the 29 days of approved overtime. Lieutenant Graap was granted 12 hours of overtime compensation, yet he worked 89.5 hours of overtime during the 29 days of approved overtime. Lieutenant Staniszewski was granted 181.25 hours of overtime, yet he only worked 26.5 hours of overtime during the 29 days of approved overtime. By correspondence dated December 30, 2008, the Division of Budget corrected these "miscalculations".

Footnote 9:Respondent fails to submit with its answer, a copy of a certified return as per CPLR §7804(e).

Footnote 10:Respondent asserts that overtime compensation for civilian pilots involved in the manhunt was approved for 11 pilots based on the average ungraded salary in the amount of $85,276.

Footnote 11:Welch v. Constantine, 194 AD2d 1008 (3rd Dept. 1993); Brooks v. Forsythe, 189 AD2d 26 (3rd Dept. 1993).