MATTER OF LIPPMAN v. PERB

• Decision Date: 18 July 2002
• Citation: 296 A.D.2d 199,746 N.Y.S.2d 77
• Parties: In the Matter of JONATHAN LIPPMAN, as Chief Administrative Judge of the Unified Court System of the State of New York, Petitioner,<BR>v.<BR>PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

296 A.D.2d 199

746 N.Y.S.2d 77

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

v.PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.

ROSE, J.

July 18, 2002.

Michael Colodner, Unified Court System, New York City (Kenneth Falk of counsel), for petitioner.

Gary Johnson, Public Employment Relations Board, Albany (Sandra M. Nathan of counsel), for Public Employment Relations Board, respondent.

Nancy E. Hoffman, Civil Service Employees Association Inc., Albany (Marilyn S. Dymond of counsel), for Civil Service Employees Association Inc., respondent.

CREW III, J.P., PETERS, MUGGLIN and LAHTINEN, JJ., concur.

OPINION OF THE COURT

ROSE, J.

This proceeding examines the basis for a determination by respondent Public Employment Relations Board (hereinafter PERB) that the Unified Court System (hereinafter UCS) violated the Taylor Law (Civil Service Law art 14) when petitioner unilaterally issued a December 1997 administrative order (hereinafter the Order) amending 22 NYCRR part 108 (hereinafter Part 108) relating to the sale of transcripts of court proceedings by court reporters to litigants.

In addition to their duties in creating the official record of court proceedings, court reporters are required to furnish transcripts to litigants (see, Judiciary Law §§ 300, 302) and are entitled to payment of the fee provided in Part 108 (see, id.; CPLR 8002). As promulgated in 1986 based on collectively bargained terms, Part 108 permits a court reporter furnishing a transcript to a party other than UCS to receive any fee agreed upon by the reporter and the litigant, and provides, in the absence of a mutually agreed fee, the minimum or default rate of $1.375 per page. Part 108 does not, however, specify the time within which transcripts being prepared at the minimum rate should be completed. Judiciary Law § 302 (1) provides only that such transcripts be prepared "with all reasonable diligence," and the Court Reporters' Manual advises: "Counsel should be notified when to expect the transcript and should be notified expeditiously of any delays."^[1]

In response to the public's ignorance of the minimum rate, the court reporters' failure to give expected transcript delivery dates, and the claims of excessive and nonuniform transcript costs and delivery delays made by litigants, individual attorneys and the New York State Bar Association in its May 1997 "Report on Court Reporter Fees" (hereinafter NYSBA report),^[2] petitioner issued the Order to improve public understanding of transcript sales. It sought to do so by setting forth guidelines for the fees per page (hereinafter page rates) for daily and expedited transcripts, and by requiring court reporters to complete and file a UCS-prescribed "Minute Agreement Form" (hereinafter Agreement Form) for each transcript not paid for by UCS.

Specifically, the Order added section 108.2 (b) (2), which provides:

"Where a court reporter and a private party otherwise enter into an agreement pursuant to section 8002 of the CPLR for the furnishing of a transcript, the following rate maximums should be used as guidelines:

"Expedited copy—$4.40 per page

"Daily copy—$5.50 per page^[3]

"Expedited copy means production of the transcript within seven calendar days" (22 NYCRR 108.2 [b] [2]).

It also added section 108.4, which provides:

"(a) Each court reporter who furnishes a transcript of a court proceeding shall, at the time the transcript is requested, enter into a written agreement for its production with the person or party requesting the transcript. The agreement shall be made on a form prescribed by the Chief Administrator of the Courts and shall set forth the rate per page, the estimated number of pages, and the date by which the transcript shall be produced.

"(b) Each court reporter who enters into such written agreement shall file a copy of that agreement in the office of the appropriate administrative judge, or his or her designee, no later than seven days after entering into the agreement.

"(c) This section shall not apply where the [UCS] is responsible for payment to the court reporter for the transcript" (22 NYCRR 108.4).

Respondent Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (hereinafter CSEA) and others then filed improper practice charges against UCS, alleging that the unilateral amendment of Part 108 violated Civil Service Law § 209-a (1) (d). Under that section, it is an improper practice for a public employer to unilaterally alter the terms and conditions of employment in violation of its statutory duty to negotiate with the certified representative of its public employees (see, e.g., Matter of Milonas v Public Empl. Relations Bd., 225 AD2d 57, 64, lv denied 89 NY2d 811; Matter of State of New York [Div. of Military & Nav. Affairs] v New York State Pub. Empl. Relations Bd., 187 AD2d 78, 82). Following a hearing, the Administrative Law Judge (hereinafter ALJ) found that the page rates stated in petitioner's Order were mandatory maximums, rather than advisory guidelines, in derogation of the court reporters' right to negotiate higher rates, and that the mandatory Agreement Form improperly compelled reporters to participate in a new reporting method and enter a written contract for every private transcript. Based on these findings, the ALJ concluded that the Order had a direct impact on the terms and conditions of the reporters' employment, primarily by limiting their compensation, and thereby constituted a violation of Civil Service Law § 209-a (1) (d).

On administrative appeal, PERB affirmed the ALJ's decision, finding that regardless of whether the Part 108 page rates are mandatory or "just guidelines," "the effect of the Order has been to limit the amount of compensation received by reporters for a transcript provided to private litigants." Finding also that UCS "ties the rate of compensation it pays reporters to their earnings from private transcript production," PERB concluded that the Order "directly affects" the terms or conditions of the reporters' employment. Then, after defining the mission of UCS exclusively as "to dispense justice," PERB held that petitioner's statement of page-rate guidelines is not a matter sufficiently related to that mission to outweigh its impact on reporters' compensation and hours of work. As to the Agreement Form requirement, PERB merely adopted the ALJ's findings.

Petitioner then commenced this proceeding seeking to annul PERB's determination due to a lack of substantial evidence as well as PERB's disregard for UCS's broader mission of assuring timely and affordable access to justice. In response to petitioner's submission of certain documents, PERB moved to strike them from the record as materials not considered in the administrative proceeding. Supreme Court denied PERB's motion to strike, granted CSEA's motion to intervene and transferred the proceeding to this Court.

As a threshold matter, Supreme Court erred in denying PERB's motion to strike because "judicial review of an administrative determination is limited to the record before the agency, and proof outside the administrative record should not be considered" (Matter of Van Antwerp v Board of Educ. for Liverpool Cent. School Dist., 247 AD2d 676, 678). The documents submitted by petitioner include materials not introduced at the administrative hearing. Since these materials are matters outside the administrative record, they cannot be considered by this Court in reviewing the merits of PERB's determination and will, therefore, be deemed excluded from the record (see, Matter of Margolin v Newman, 130 AD2d 312, 315-317, appeal dismissed 71 NY2d 844).

Turning to the merits of the petition, we begin by noting that in assessing the intent and effects of the Order, PERB ignored the unique aspect of the court reporters' control over court transcripts. There is no real dispute that a court reporter's public employment creates a monopoly and confers a superior bargaining position vis-Ã -vis any litigant who needs a transcript, but cannot wait for it to be prepared "with all reasonable diligence" at the minimum rate. Court reporters have these private business advantages because the particular reporter who makes the stenographic record of a court proceeding is the sole source of the official transcript and because the official record is usually essential to the litigant's participation in further judicial proceedings (see, CPLR 5525 [a]; 5526 [record on appeal]). Since there is no deadline fixed by statute or rule for a transcript prepared at the minimum rate, the payment of page rates in excess of the minimum rate is routinely necessary to secure timely transcript production. In addition, since the court reporter and the litigant formerly were the only ones who knew the agreed-upon page rate and production date, since the public was largely unaware of the minimum rate, and since it was to the reporter's advantage to perpetuate such ignorance (see, Langer v New York State Off. of Court Admin., 2002 WL 449531, 2002 US Dist LEXIS 3267 [WD NY, Jan. 14, 2002]), the fee negotiation process was one-sided, hidden and unpredictable from the public's perspective, and largely escaped oversight by UCS. Consequently, litigants were faced with the dilemma of either paying page rates significantly in excess of the minimum rate^[4] or accepting significant delays in transcript production with no guidelines for, or uniformity in, those rates and deadlines.

PERB also misconstrued UCS's mission. As testified to by UCS's witnesses here, and guaranteed by the First, Fifth and Fourteenth Amendments of the US Constitution (see, e.g., M.L.B. v S.L.J, 519 US 102, 110-112), the defining mission of UCS is to provide an accessible forum to every litigant seeking redress of grievances (see, Trial Court Performance Standards and Measurement System Implementation Manual, Standard 1, "Access to Justice" [Bureau of Justice...