MATTER OF LIPPMAN v. Public Employment Relations Board

• Citation: 694 N.Y.S.2d 510,263 A.D.2d 891
• Court: New York Supreme Court Appellate Division
• Decision Date: 29 July 1999
• Parties: In the Matter of JONATHAN LIPPMAN, as Chief Administrative Judge of the Courts of the Unified Court System of the State of New York, Petitioner,<BR>v.<BR>PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent.

263 A.D.2d 891

694 N.Y.S.2d 510

In the Matter of JONATHAN LIPPMAN, as Chief Administrative Judge of the Courts of the Unified Court System of the State of New York, Petitioner,

v.PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent.

Spain, J.

Decided July 29, 1999.

Mikoll, J. P., Mercure, Peters and Carpinello, JJ., concur.

Spain, J.

We are presented in this special proceeding with the question of whether respondent properly denied and dismissed the application of the employer, the Unified Court System of the State of New York (hereinafter UCS), requesting the designation of nine high-level nonjudicial UCS employees as managerial or confidential pursuant to Civil Service Law § 201 (7) (see, 4 NYCRR 201.10).^[1] Under Civil Service Law § 201 (7) (a), employees who are designated "managerial or confidential" are excluded from the definition of "public employees" and, as such, are generally not covered by the myriad of rights and protections afforded to public employees under the Taylor Law (Civil Service Law § 200 et seq.; see, e.g., Civil Service Law §§ 202, 209, 214). The employees at issue are appointees serving either the State Court of Appeals or the Appellate Division, First and Second Departments. The job titles at issue are as follow: Consultation Clerk, Court of Appeals; Assistant Consultation Clerk, Court of Appeals; Assistant State Reporter, Law Reporting Bureau; Chief Appellate Court Attorney (hereinafter ACA), Appellate Division, First Department; Deputy Chief ACA, Appellate Division, First Department; Chief Court Attorney, Grievance Committee, Appellate Division, First Department; Chief ACA, Appellate Division, Second Department; Deputy Chief ACA, Appellate Division, Second Department; and Supervisor of Decision Department, Appellate Division, Second Department. All are in a negotiating unit represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (hereinafter CSEA). Because we conclude that respondent's determination denying the designations is, in all respects, rational and consistent with the fundamental policies underlying the Taylor Law (see, Civil Service Law § 200 et seq.), we confirm its determination.

As a threshold matter, we endeavor to discern the scope of our review of respondent's interpretation of the term "public employee" under Civil Service Law § 201 (7), which involves its subsidiary interpretation of the terms "managerial" and "confidential" and its application to the subject employees' titles. In that regard, we are instructed that "[a]n administrative agency's interpretation of the statute it is charged with implementing is entitled to varying degrees of judicial deference depending upon the extent to which the interpretation relies upon the special competence the agency is presumed to have developed in its administration of the statute" (Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47; see, Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225, 231). Great deference is accorded to an agency's judgment where its interpretation "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 451, 459; see, Matter of Rosen v Public Empl. Relations Bd., supra, at 47). However, it has been repeatedly stated that "where * * * the question is one of pure statutory construction `dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence' * * * judicial review is less restricted as `"statutory construction is the function of the courts"'" (Matter of Rosen v Public Empl. Relations Bd., supra, at 47-48, quoting Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; see, Matter of Gruber [New York City Dept. of Personnel—Sweeney], supra; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d 722, 724).

The task of distinguishing between questions of "pure statutory construction" and instances where deference to an agency's expertise is appropriate proves to be somewhat elusive, as "`the resolution of ambiguity in a statutory text is often more a question of policy than of law'" (Matter of Gruber [New York City Dept. of Personnel—Sweeney], supra, at 242 [Levine, J. dissenting], quoting Pauley v BethEnergy Mines, 501 US 680, 696). Notably, the Court of Appeals has repeatedly stated that, as the agency charged with implementing the fundamental policies of the Taylor Law, respondent is "presumed to have developed an expertise and judgment that requires us to accept its construction if not unreasonable" (Matter of Village of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404; see, Matter of Board of Educ. of City School Dist. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 666; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., supra, at 724; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50-51; see also, Civil Service Law §§ 200, 205 [5]). These cases suggest that our review of respondent's interpretation of the Civil Service Law is so limited (see, Matter of Board of Educ. of City School Dist. v New York State Pub. Empl. Relations Bd., supra; Matter of Village of Lynbrook v New York State Pub. Empl. Relations Bd., supra [according deference to respondent's interpretation of "retirement benefits" under Civil Service Law § 201 (4)]; see also, Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., supra, at 724; Matter of West Irondequoit Teachers Assn. v Helsby, supra; Matter of Evans v Public Empl. Relations Bd., 113 Misc 2d 986), although respondent's interpretation of other laws ordinarily need not be accorded deference (see, Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480 [General Municipal Law]; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315 [Public Health Law]; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619 [Education Law]; Matter of Board of Educ. of City School Dist. v New York State Pub. Empl. Relations Bd., supra, at 665 [same]; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., supra, at 724 [Town Law]). Indeed, this Court has consistently accorded deference to respondent's interpretations of the Taylor Law, in view of its expertise with respect to the fundamental policies underlying that law (see, e.g., Matter of State of New York [State Univ.] v New York State Pub. Empl. Relations Bd., 181 AD2d 391 [interpretation of "public employees" under Civil Service Law § 201 (7) (a)]; Matter of University of State of N. Y. v Newman, 180 AD2d 396 [interpretation of "public employer" under Civil Service Law § 201 (7) (a)]).

By contrast, in its more recent pronouncement in Matter of Rosen v Public Empl. Relations Bd. (72 NY2d 42, 47, supra), the Court of Appeals, although ultimately agreeing with respondent's conclusion, held that the issue of whether certain conduct constituted "employee organization" within the meaning of Civil Service Law § 201 (5) and was protected by Civil Service Law § 202 was a question of "pure statutory construction" for the courts, to which deference to respondent's expertise need not be accorded. It is unclear if Rosen represents a departure from the principles of deference to respondent's expertise in interpreting the Taylor Law as articulated in Matter of Village of Lynbrook v New York State Pub. Empl. Relations Bd. (48 NY2d 398, supra) and its progeny.

In our view, respondent possesses special competence and has, in fact, developed an expertise in the administration of the Taylor Law; this is particularly evident here, as the interpretation and applicability of the statutory definitions of "management" and "confidential" under Civil Service Law § 201 (7) (a) have, since their adoption in 1971, largely been resolved at respondent's administrative level, and the courts have only infrequently been called upon to review its determinations (see, Matter of Metropolitan Suburban Bus Auth. v Public Empl. Relations Bd., 48 AD2d 206; Matter of Board of Educ., 6 PERB ¶ 3001, affd sub nom. Board of Educ. v Helsby, 42 AD2d 1056, affd 35 NY2d 877; Matter of Evans v Public Empl. Relations Bd., 113 Misc 2d 986, supra; see also, Matter of Shelofsky v Helsby, 32 NY2d 54 [upholding constitutionality of management/confidential designation]). Thus, "`[s]o long as [respondent's] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections'" we will accept respondent's construction if reasonable and not arbitrary or irrational (Matter of Village of Lynbrook v New York State Pub. Empl. v Relations Bd., supra, at 404, quoting Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50, supra). Moreover, even if this proceeding were deemed to present a question of "pure statutory construction" (Matter of Rosen v Public Empl. Relations Bd., supra, at 47), our independent review of the statute would not produce a different result.

Next, we turn to the proper standard of review. Both parties contend that the inquiry before the court is whether respondent's determination was supported by substantial evidence (see, CPLR 7803 [4]). However, the hearing that respondent afforded to the UCS on its application to designate these employees as management/confidential was discretionary and was clearly not required by law (see, 4 NYCRR 201.10 [h] [the Director of Employee Relations "may direct a hearing"]). Therefore, the standard to be applied upon a CPLR article 78 review of respondent's determination interpreting and applying the Taylor Law is whether it was arbitrary and capricious (see, Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 164 AD2d...