By SHERRY HALBROOK
The Appellate Division of the New York State Supreme Court has upheld a PEF claim that the state Department of Correctional Services violated the PS&T contract when it required senior correction counselor Larry Woodward to function as a hearing officer at inmates’ disciplinary hearings.

Woodward works at Elmira Correctional Facility. Although out-of-title work is allowed under state Civil Service Law only in a “temporary emergency situation,” Woodward has been assigned to conduct an average of 60 hearings per year since 1994. Nine other civilian supervisory-level employees are also assigned to conduct the hearings at the prison.

The court has ordered DOCS to pay Woodward retroactively to February 1997, when he filed the grievance, for the difference between his grade 22 salary as a counselor and the grade 25 pay due a hearing officer.

“This is an important decision for our members at the state Department of Correctional Services,” PEF President Roger Benson says. “It’s clear that requiring counselors and other program staff to conduct inmate-disciplinary hearings undermines the role our members play in the correctional setting.”

Courts see clear violations
The Appellate Division in January upheld a state Supreme Court decision by Judge Stephen Ferradino.

PEF took its case to court after both the Governor’s Office of Employee Relations and the state director of classification and compensation dismissed the union’s grievance.

Judge Ferradino rejected the state’s position because the assignments to Woodward to conduct the hearings were made on a routine, long-term basis and constituted out-of-title work. And Ferradino rejected DOCS’ reliance on an administrative regulation that permits a facility superintendent to designate employees other than uniformed supervisors to conduct disciplinary hearings.

The state appealed Ferradino’s decision, but the Appellate Division unanimously affirmed it.

“The Appellate Division noted the primary function of a senior correction counselor is to counsel and provide inmates with the services necessary for their adjustment to prison life,” says PEF General Counsel William Seamon.

“The court ruled that presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making findings of fact and conclusion of law and imposing punishment simply cannot be said to be reasonably related to, or viewed as a logical extension of the duties of a senior correction counselor,” Seamon adds.

Hearing officers cost more
In fact, the duty of conducting these hearings belongs to hearing officers, a grade 25 position that can be held only by attorneys. However, DOCS had just one hearing officer at Elmira C.F. and that individual just retired.

“The problem is, DOCS doesn’t have enough hearing officers to handle all of the cases, so it assigns the work to other staff, such as senior corrections counselors, vocational supervisors, academic supervisors, plant superintendents or food administrators,” says PEF Region 4 Coordinator David Stallone.

A supervising vocational instructor at DOCS, Stallone is PEF chair of the joint labor-management committee at DOCS.

DOCS would rather use lower-paid employees to do the work, than hire more attorneys, but if the people being worked out of title all grieved the assignments, DOCS would have to pay them the difference.

Among the most important aspects of Ferradino’s ruling and the Appellate Court’s affirmation is that it puts clear limits on the administrative right of prison superintendents to assign staff, says Stallone.

“This is the first time we’ve had a decision that flat-out says the superintendent’s rights are limited by the contract and by Civil Service Law,” Stallone says.

Stand up for your rights
The union has grievances pending at step 3 protesting the hearing-officer assignments for several PEF members in other supervisory-level titles at DOCS. Stallone and Woodward urged more PEF members to come forward and grieve the out-of-title work and demand enforcement of Civil Service Law.

“The justice system does work. Please help change the system to become fair to me, you and all future DOCS employees,” Woodward says.

“Thank God for unions, PEF, Roger Benson and PEF attorneys, such as Elizabeth Schuster who represented me in this case,” he says. “They fought tooth and nail right to the end to ensure justice for me and many other civilian DOCS employees. I can never thank them enough.”

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