A state Supreme Court justice has sided with PEF in an important out-of-title case involving senior correction counselor Larry Woodward, who works at Elmira Correctional Facility.

Woodward has been required to act as a hearing officer conducting Tier III inmate disciplinary hearings since 1994 on a routine and regular basis.

Justice Stephen Ferradino of the Supreme Court, Albany County, ruled in October that the state Department of Correctional Services (DOCS) regulation that allowed Woodward's superintendent to assign him to the hearings was in conflict with state Civil Service Law.

It is also a direct violation of Article 17 of PEF's contract with the state.
"This could have a precedential effect. The agency now has been informed that the courts have ruled that such assignment is illegal. Other correction counselors can now object to performing this out-of-title work, and we hope it will get to the point that the agency won't assign counselors or other non-hearing officers to disciplinary hearings," said PEF General Counsel William Seamon.

After repeatedly being assigned to conduct Tier III proceedings, Woodward requested that his name be taken off the hearing officers list. His request was denied, and an out-of-title grievance was filed in February 1997.

The grievance was denied by DOCS, and then submitted to the Governor's Office of Employee Relations (GOER), where it was again turned back in August 1997.

Having exhausted the grievance process under the PS&T contract, in May the union filed an Article 78 proceeding charging GOER with being "arbitrary and capricious" in its denial of Woodward's grievance.
The court ruled in October.

"In his decision, Judge Ferradino made note of the clear distinctions in Civil Service specifications for hearing officers (grade 25) and senior correction counselors (grade 22), and underscored the different roles Woodward was forced to fill in terms of his relationship with inmates," Seamon said. As a senior correction counselor, Woodward operates in an advisory capacity, Seamon said, while in the Tier III hearings, he may be in an adversarial role.

"Judge Ferradino wrote in his decision that the two bear no substantial similarity, concluding that for a counselor to act as a hearing officer would be 'inappropriate,'" Seamon said.

Ferradino also noted that GOER had not alleged any "temporary emergency" to justify Woodward's assignment, and did not dispute that Woodward had conducted hearings on "a long-term, routine rotational basis."

While Ferradino ordered that Woodward be paid for the out-of-title work he performed as a hearing officer, he likely won't see any back pay for a while.

"Because DOCS relies on senior correction counselors and other PS&T titles to conduct tier hearings, an appeal by the state should be expected," Seamon said.

Until the appeals process is exhausted, Seamon is advising Woodward and other correction counselors that it would be insubordinate to refuse to perform out-of-title work if it is assigned.

"You must continue to do the work, then grieve it, until this is settled," he said.

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