Matter of Roberts v Cuomo

[*1] Matter of Roberts v Cuomo 2013 NY Slip Op 52264(U) Decided on December 23, 2013 Supreme Court, Albany County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2013
Supreme Court, Albany County

In the Matter of the Petition of Lillian Roberts, as Executive Director of District 37, AFSCME, AFL-CIO; DENNIS IFILL, as President of Local 1359, the Rent Regulation Services Employees, District Council 37, AFSCME; LOCAL 1359, District Council 37, AFSCME; CHRISTINE MANIEGO, CHRISTOPHER DUCIE and DWAYNE DUGGER, on Behalf of Themselves and all Others Similarly Situated, Petitioners For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

Andrew M. Cuomo, as GOVERNOR of the STATE OF NEW YORK; THE STATE OF NEW YORK; the NEW YORK STATE DIVISION OF THE BUDGET; ROBERT L. MEGNA, as Budget Director of the NEW YORK STATE DIVISION OF THE BUDGET; the NEW YORK STATE DIVISION OF HOMES AND COMMUNITY RENEWAL; DARRYL C. TOWNS, as Commissioner of the NEW YORK STATE DIVISION OF HOMES AND COMMUNITY RENEWAL; GARY JOHNSON, as Director of the GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS; and the GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS, Respondents.



5234-2013



Mary J. O'Connell

General Counsel

District Counsel 37, AFSCME, AFL-CIO

By: Erica C. Gray-Nelson, Esq.

125 Barclay Street, 5th Floor

New York, New York 10007

Eric T. Schneiderman

Attorney General of the State of New York

Attorney for the State Respondents

By: Adrienne Kerwin, Esq.

The Capital

Albany, New York 12224

Michael C. Lynch, J.

On October 26, 2012, New York State Governor Andrew Cuomo declared a State Disaster Emergency pursuant to Executive Law §28 resulting from the impact of the storm known as Hurricane Sandy. Petitioners [FN1] commenced this CPLR Article 78 proceeding after the respondents determined that certain employees who worked during the aftermath of the storm, including the petitioners Christine Maniego, Christopher Ducie, and Dwayne Dugger, would not be entitled to pay for hours worked beyond their regular work week.Respondents served an Answer to the petition and claim that the petition fails to state a cause of action.

The Civil Service Law provides that the basic work week for state employees shall not exceed forty hours and, if an employee who is eligible for overtime in required to work beyond their basic work week, he or she is entitled to overtime (Civil Service Law §134(1)). As for [*2]employees who are generally not eligible for overtime, they may be compensated for hours worked in excess of their regular workweek "upon approval by the director of the budget and at a rate established by the director of the budget", subject to a cap not to exceed 12% of the employee's basic salary (Civil Service Law §134(5); or, where the Director of the State Division of Budget determines that the excess hours worked were during a period "deemed to be an extreme emergency" pursuant to the Civil Service Law (Civil Service Law§ 134 [6]; Welch v. Constantine, 194 AD2d 1008, 1010 [1993]).

On October 29, 2012, the respondent Robert L. Megna, the Director of the Budget for the New York State Division of the Budget (hereinafter, DOB) issued a Budget Bulletin "instituting a special policy to accommodate employee overtime compensation for critical and essential work associated with Hurricane Sandy" (Exhibit C). The stated purpose of the Bulletin was to "provide [ ] commissioners and agency heads the flexibility to provide, within existing budget allocations, otherwise overtime ineligible employees with overtime compensation for excessive hours worked for necessary preparation and response to this storm" (Id.). As relevant to this proceeding, the Bulletin announced the "Overtime policy for Otherwise Ineligible Employees", specifically, that the State would grant: "1. [b]lanket overtime authorization for staff in Grade 27 and below positions who work in excess of 47.5 hours per work week, provided that such overtime is both essential and directly related to activities associated with the State's preparation and response to Hurricane Sandy. Agency heads will be responsible for determining which overtime requests fulfill the "essential and directly related" criteria. The granting of overtime for otherwise ineligible employees should only be considered when directly related to hurricane preparedness and response only if no other alternatives exist"

Now, petitioner Maniego submits an affidavit wherein she avers that she has been employed by the Division of Homes and Community Renewal (DHCR) for approximately 18 years and holds a position that is assigned the salary grade level 23.Ms. Maniego confirms that her regular workweek is 37.5 hours and that she is ordinarily not entitled to overtime.Petitioner Ducie explains in an affidavit that he also works in a Grade 23 position at DHCR and that his regular work week is "compressed" so he works thirty five hours in one week and forty hours the next. As for petitioner Dugger, he explains that he works in a Grade 23 position at DHCR and his regular work week is 37.5 hours.

Petitioners explain that on November 2, 2012, the Commissioner of DHCR announced that the State was establishing Disaster Recovery Centers and advised that "if [DHCR] employees are interested in assisting at a site please email [certain employees] with your contact info, the name of your supervisor, and your availability" (Exhibit A-1). In response to this e-mail, Ms. Maniego advised that she was interested but questioned whether overtime would be available. The agency's response was "that [the agency had] authorization for OT for [salary] grades 27 and below" (Id.). On November 9, 2012, a Deputy Commissioner sent a second email which, inter alia, advised that the sites would be open every day from 7:00 a.m. to 7:00 p.m., confirmed that overtime would be available for employees in Grade Level 27 and below, and provided a point of contact for those employees interested in assisting with the Hurricane relief effort.

In response to the request for staff to serve in Disaster Recovery Centers, Ms. Maniego worked on November 24, 2012, November 25, 2012, December 1, 2012, December 2, 2012, [*3]December 8, 2012 and December 9, 2012.During this time, in total, she worked seventy two hours over and above her regular work week. Mr. Ducie avers that he worked in a Disaster Recovery Center on thirteen days during the period beginning November 15, 2012 through December 30, 2012; and, in sum, he worked 97.75 hours above his regular work week. Petitioner Dugger avers that he worked in a Recovery Center on thirteen days during a period beginning November 7, 2012 through December 6, 2012.In sum, Dugger avers that he worked 129 hours "in connection with" disaster relief (¶ 10). Although they received overtime for the hours worked in excess of 47.5 hours in a work week, neither Maniego, Ducie, nor Dugger were compensated for the hours worked beyond their regular work weeks and below 47.5 hours. Further, each of them claim that when they agreed to work, they were not aware that they would be providing "ten hours of free labor" (Maniego at ¶ 22; Ducie at ¶ 19; Dugger at ¶ 13).

As set forth above, the Budget Bulletin announcing the overtime policy at issue in this proceeding was issued on October 29, 2012.On November 27, 2012, Ms. Ogden, an employee at the DHCR payroll office sent an email to DHCR staff "to provide guidelines for reporting overtime related to Hurricane Sandy" (Appendix A-5). As relevant to this dispute, Ogden advised that the "special policy" for employees otherwise not eligible for overtime was that overtime would be paid for those hours worked in excess of 47.50 hours in a work week.In response to further inquiry from petitioner Maniego, Ogden (1) confirmed that employees would not be paid overtime or receive compensatory time for those hours worked "over [their] normal schedule and below 47.50 hours"; (2) confirmed that "[n]ormal overtime rules do not apply for non-overtime eligible employees because they do not get any compensation for any hours worked above their normal schedule; and (3) explained that Division of Budget was "generous" inasmuch as it waived the rule with respect to those hours worked in excess of 47.50 because otherwise, non overtime eligible employees would be paid nothing at all (Id).

In this CPLR Article 78 proceeding, the petitioners allege that they are entitled to overtime compensation for all hours worked over and above their regular workweek and the respondent Division of Budget was not authorized to cap or otherwise limit the overtime hours n paid during an "extreme emergency". Accordingly, petitioners allege that the determination to only pay overtime for hours worked over and above 47.5 hours in a work week was "arbitrary, capricious, irrational and contrary to law" (First Cause of Action). Petitioners also allege that the "Budget Bulletin" issued on October 29, 2012 "improperly expanded the definition of normal work week", that the respondent agency heads should have authorized overtime payments to the affected employees who worked in excess of forty hours in a workweek in connection with Hurricane Sandy, and request an Order from this Court directing respondent to compensate petitioners for those hours worked in excess of 40 hours in a work week (Second Cause of Action). Additionally, petitioners allege that the respondents violated the Civil Service Law and Budget Bulletin Item by not paying overtime and that the agency should have authorized overtime for all hours worked in excess of 37.5 hours (Third Cause of Action). Finally, petitioners allege that because the affected employees worked within the scope of their regular duties and in excess of their regular workweek, the respondents' determination that they were not entitled to compensation for all of the hours worked was arbitrary, capricious, and contrary to law (Fourth Cause of Action).

This Court must defer to the respondents' determination unless "it has no rational basis ... or the action complained of is arbitrary and capricious" (Matter of Pell v. Board of Educ. Of [*4]Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Wetchester County, 34 NY2d 222 [1974]). Further, the Court should annul a determination to deny overtime pursuant to Civil Service Law §134(6) if it finds that the denial by either the State agency or Division of the Budget was arbitrary or capricious (Neary v. NY State Div. of the Budget, 192 Misc 2d 375 [2005][citing Welch v. Constantine, 194 AD2d 1008 [1993]; Brooks v. Forsythe, 189 AD2d 26 [1993]).Here, the crux of petitioners' argument is that the Division of Budget's Budget Bulletin G-1034 was arbitrary and capricious and contrary to the Civil Service Law and its regulations.

As stated above, the Civil Service Law provides that employees who are generally ineligible to earn overtime but who are required to work beyond a normal work week may be granted additional compensation. Such compensation shall be paid upon approval by the director of the budget and at a rate established by the director of the budget, provided however, that such additional compensation shall not exceed twelve per cent of the employee's basic salary...

Civil Service Law §134(5). In addition, the statute provides that ... any employee in any title or individual position ineligible to accrue overtime credits... 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 ...

(Civil Service Law 134(6)).

In furtherance of its authority pursuant to the Civil Service Law, the Division of Budget issued Budget Policy G-140 in 1974 (Welch, Supra) The stated purpose of the Budget Policy is to define "guidelines for compensation during emergency situations for those ineligible for overtime" .Further, it states, "[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. 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 the Budget".

The policy defines what constitutes an "extreme emergency" as the term is used in Civil Service Law §134(6) (see G-140 at ¶2).As for the rate of compensation, the Budget Policy provides, [t]he 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" (see G-140 at ¶ 4).

Here, there appears to be no dispute that the employee petitioners are not eligible to earn overtime pursuant to the rules and regulations of the Department of Civil Service and Division of the Budget. Further, there is no dispute that there was an "extreme emergency" that allowed overtime payments to the petitioners who were otherwise not eligible for overtime pursuant to Civil Service Law §134(6). As set forth above, the respondent Director of the DOB issued [*5]Budget Bulletin G-1034 on October 29, 2012. As set forth above, G-1034 provided "blanket authorization" for overtime to otherwise ineligible employees notwithstanding the requirement set forth in the Civil Service Law and G-140 that prior approval by the Budget Director for overtime is generally required.

In response to the petition, the respondent submits an affidavit by Robert E. Brondi, the Chief Budget Examiner for the DOB.Mr. Brondi explains that the Civil Service Attendance and Leave Manual provides that the "normal workweek" for annual salaried employees who are overtime eligible is either 37 ½ hours or 40 hours per week (see also Civil Service Law §134). The manual further confirms that there is no "basic workweek" for those that are not eligible for overtime (Brondi, Exhibit C). Notwithstanding that, the manual provides that with respect to overtime ineligible employees, "it is expected that the appointing authority will install appropriate controls to ensure compliance by such employees with the agency's standard workweek" (Exhibit C).

Brondi explains that due to the nature of the work performed by employees who, like petitioners, serve in overtime ineligible positions, such employees may be required to work in excess of forty hours in a week.As relevant to this proceeding, Brondi avers: The standard of 47.5 hours per week worked before additional compensation is awarded has existed for many years and came about from DOB discussions with appropriate State agencies engaged in emergency public service delivery. The 47.5 hour threshold was determined to balance the interest of the State in directing and deploying the workforce as needed with some reasonable recognition of the additional hours required of employees. ... [The threshold] is established by adding an additional normal workday of 7.5 hours for employees working 40 hours per work week. [It] contemplates that many middle or high level overtime ineligible employees regularly work overtime hours in the performance of their duties without additional compensation. Accordingly, in situations where additional compensation to overtime ineligible employees is warranted, it is not uncommon for DOB to approve such compensation at a special rate and/or only after a reasonable amount of hours has been exceeded.

(Brondi para 14, 15).

Based on the record presented, the Court finds that respondents have not provided a rational basis for the determination to provide overtime compensation only for those hours worked over 47.5 in a work week.The Civil Service Law §134(6), enacted in 1969 (Laws of 1969, C. 491), allows the Division of the Budget to (1) deem a period to be an "extreme emergency"; (2) authorize overtime payments for those hours worked "beyond a normal workweek" during the period of "extreme emergency"; and (3) establish the rate to be paid for each overtime hours worked.The statute plainly does not authorize the Division of the Budget to define the "normal workweek" for purposes of overtime worked during an "extreme emergency"

While it is not disputed that high level employees may occasionally work beyond their "normal workweek" the phrase "normal workweek" should be construed in its most "natural and obvious sense" (see Statutes §231).In this Court's view, based on the Civil Service Law §134(1), the regulations (9 NYCRR Part 135), the Civil Service Manual (Brondi Exhibit C), and the Budget Policy G-140 (Petitioners Exhibit A), the "normal workweek" for State employees, generally, does not exceed forty hours.Notably, the legislative history of Civil Service Law §134(6) indicates that the provision was intended to provide "the same overtime [*6]benefits" as those earned by other State employees provided they are working during an "extreme emergency" (see Brondi Affidavit Exhibit D, Memorandum by Attorney General Louis J. Lefkowitz). Indeed, the Division of the Budget's own Policy G-140 provides that where an overtime ineligible employee is works " in excess of 40 hours" in an "emergency" may "be made eligible for compensation for such hours of work" (Petitioners' Exhibit A, emphasis added). In the absence of any statutory or regulatory basis for its determination, this Court declines to find that the Division's determination to limit overtime to those hours worked in excess of 47.5 during the period deemed to be "an extreme emergency" during Hurricane Sandy was authorized (Neary, Supra [FN2]; cf. Matter of Kent v. Cuomo, 2013 NY Slip Op 31036(U) [Supreme Court, Albany County 2013])

Accordingly, based on the foregoing, the Court finds that the respondents' determination that the petitioners were not entitled to overtime compensation for hours worked in excess of 40 hours during the period in question here was arbitrary and capricious and must be annulled.Notwithstanding that, the Court finds that the petitioners have not demonstrated any basis for their claim that they are entitled to some form of compensation for hours worked beyond 37 ½ hours and less than 40 hours in a workweek during the time period in question.

Finally, although petitioners have not made a formal motion to permit this proceeding to be maintained as a class action (CPLR 902), where, as here, "governmental operations are involved, and where subsequent petitioners will be adequately protected under the principles of stare decisis" this Court finds that such relief is not necessary (Jones v. Berman, 37 NY2d 42, 57 [1975]).

Accordingly, based on the foregoing, it is

ORDERED AND ADJUDGED that the petition is granted, as set forth above; and it is further

ORDERED AND ADJUDGED that the matter is remanded to the respondent Division of the Budget to take further action consistent with the Decision and Order of this Court; and it is further

ORDERED AND ADJUDGED that the overtime compensation earned by the petitioners pursuant to Civil Service Law §134(6) for those hours worked in excess of 40 hours in a normal work week during the period deemed to be an "extreme emergency" declared as a result of Hurricane Sandy shall be paid within forty-five days from the date of service of this Decision and Order, with notice of entry.

This represents the Decision and Order/Judgment of this Court. This Original Decision and Order/Judgment is being returned to the attorney for petitioners. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.

DATED:December 23, 2013 [*7]

Albany, New York

_______________________________

Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1. Notice of Petition dated March 25, 2013, with Verified Petition and Exhibits thereto, stipulation and Order transferring the proceeding to Albany County (Rosengarten, J.);

2. Verified Answer dated July 1, 2013, Affidavit of Christine Ogden, Affidavit of Severin M. Moro, Affidavit of Robert E. Brondi, with Exhibits thereto, Memorandum of Law;

3. Verified Reply dated July 31, 2013

Oral Argument was held on September 6, 2013. Footnotes

Footnote 1:Petitioners include Lillian Roberts, the Executive Director of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter DC-37), an organization of fifty three local unions representing approximately 120,000 municipal employees and Dennis Ifill, the President of Local 1359, the Rent Regulation Services Employees, a local union that represents approximately 345 bargaining unit members employed with the New York State Division of Homes and Community Renewal (hereinafter RRSU). Although the employee petitioners are members of RRSU, no party has provided a copy of the Collective Bargaining Agreement governing their employment with the State Division of Homes and Community Renewal. It is not apparent whether petitioners sought relief pursuant to any applicable provision of the Collective Bargaining Agreement.Notwithstanding, the Court will follow the procedural course charted by the parties.

Footnote 2:In Neary, the DOB issued a Budget Bulletin providing for "extreme emergency" overtime as a result of the September 11, 2001 attack on the World Trade Center. Overtime was paid for hours worked over forty in a week, the issue presented was whether the DOB could limit the amount of overtime paid.