STA-fEOF NE\,VYORI( SUPItEIvtE COURT

COUNTY ALBANY OF

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) ) VERIFIED PETITION ) SUSAN M. KENT, aspresiclent tireNEW of YORK ) STATE PUBLIC EMPLOYEESFEDERATION, ) AFL-CIO andMICHAEL UFKO, HUGH CIRRITO, ) JOAN BOBIER and HEIDE_MARIE DUDEK, On ) IndexNo. Behalfof Themserves Ail otirersSimirarry And sit,atecl, ) ) petitioners. ) ) DateFiled: February 26,2013 pursuantto For a Jtrdgment CpLR Article7g, ) ) Justice _against_ ) ) ANDREW M. CUOMO, as GOVERNORof the STATE ) OF NEW YORK; THE STATE oF NEW YORK; ) tIIeNEW YORK STATE DTVISION THE oF BUDGET; ) I{OBERT L. MEGNA, asBudger Directorof rheNEW ) YORK STATE DryISION OF-THEBUDCET; the ) NEW YORK STATE DEPARTMENTOF ) TRANSPORTATION; JOAN McDONALD, as ORATARGUN4E ) NT Comrnissioner the NEW YORK STATE of IS REQUESTED ) DEPARTMENT OF TRANSPORTATION; ) Ihe DIVISION OF HOMELAND SECURITY AND ) EMERGENCY SERVICES;JEROME M. HAUER, as ) the Commissioner the DIVISION OF HOMELAND of ) SECURITY AI\D EMERGENCY SERViCES; the ) DEPARTMENT OF HEALTH;NIRAV R. SHAH, asthe ) Commissioner the DEPARTMENT OF HEALTH; of the ) DEPARTMENT OF ENVIRONMENTAL ) CONSERVATION; JOSEPHMARTENS, as the ) Conrmissioner the DEPARTMENTOF of ) ENV IRONMENTAL CONSERVATION, ) ) Respondents. )

In the Matterof the petitionof

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Petitioners, their attomey, LISA M. KING, by ESe. (Enc Kwasniewski, CoLrrrsel), bring this class

of

petitron under Civir pructice Law uncr Rures fhereinafter

"CPLR"l Arricle 7g.

This is a procee<ling under 1PLR Article 78 for a j,dg'rent and order directing Respondent Divisio' of the Budget to approve paymentto petitio'ers and all similarly situated employeesfor overtirne lvork they performe<1 between and 47.slhoursper rvork 40 rveel< during the extreme emergency createdby Hunicane sandy as requrred by Section 134(6)of the Cit,il ,lerviceLtnt, (,,CLL,,). In the alternative,petitioners seek a jucigment a'd orcler directing respondents Departmentof Transportation ("DoT,,), Departmentof Heartrr (..DoH,,), Departrnent of Environmerrtal conservation ("DEC") and Division of Homeiand securityand Emergency

Services("DHSES") "Agencies"] to requeston behalf fhereinafter of petitroners pa]rnent from respondent Division of the Budgetfor all overtime work, inclu<1ing overtimebetwee' 40 and 17 '50 hours per work week, performedduring the emergency createdby Hurricane : Sandy'The classof petitioners consists the namedpetitio'ersherein, of and similarlysituated j Professional'Scientific & Technical ("PS&T") u'it employeesin grade 23 andabove l positionswhor'vorkeduncompensatedovertimeinconnectionwiththeState,srespons HunicaneSandy.

This court has jurisdiction overtrris proceeding pursuant CPLRArlicle 78. ro Venue is held in Albany Cor_rnty pursuant to C\LR S506(b)because responclents' principleofficesare located in Albany County.

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PETITIONERS 3' 'l ' : ' At all tirnesrelevant this proceeding, to petitioner SusanM. Kent has beenthe

clulyelected President the New Yorl< of State PLrblic Employees Federation, A-F,L-cIo(,,pEF,,), an unincorporated association undertherawsof thestateof New york. PEF is zrn employee organization pursuant theTuylorLuw,havinl* to amongst its prlnlary pulposesthe improvement of the termsand conclitions e*rpioyment of for the public sectoremployees represents. it 5' the duly authorized i bargaining representative the PS&T unit fbr of Stateemployees uncler et. $200-$201 seq.of the : Cl'iv,il SeruiceLttw (commonly knorvn as the ,,Ta1,76, Lttw,,), pEF represents approximately , 54,000PS&T Unit rnembers the in empioyof trreState New york. of PetitionerKent, as President of PEF, brings this procedure on behalf of the , approximately L4'469Ps&T U'it ernployees in civil servicepositio's ailocated to sarary grade i 13 andabove. 7,AtalltinresrelevanttotIrisproceeding,PetitionerMichaeIUfkohasbeen 6' At all times relevantto this proceeding, PEF rvas and is 4

employedas a civil Engineer3' salary grad,e by Dor and is, ancl 27, at all timesrelevant has ) been,a PS&T memberrepresented pEF. by , 8' Petitionerufl<o is over the age of 18 and resides the county of in Suffolk. i 9' At all times relevant to this proceeding, petitioner Joan Bobier has been entployedas a Principalsanitarian, salarygrade 23,byDoH and is, and at all timesrelevant , hasbeen,a pS&T memberrepresented pEF. bv

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Petitioner Bobieris overthe ageof 18 anrlresides the in Countyof Albany. At ali times relevantto this proceeding, Petitioner Heide-Marie Dr"rdek was

employecl a Civil Engineer2, salarygrade as 24,by DHSES and is, anclat all times relevant hasbeen.a PS&T memberrepresented pEF. by 12' 13' Petitioner Dudekis overtheageof l8 andresides the in county of Alba'y. At all times relevantto this proceeding, petitionerHugh cirito has been

enrployed an Envitotrnrental as Ertgineer salary 2, grade 24,by DEC and is, and at all times rele.,,ant been,a pS&T memberrepresented pEF. has by l4' Petitior-rer Cinito is over the ageof 18 andresides the in county of suffolk.

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upon information andbelief;PEFrepresents approximately 14,46gemployees irr

tlrevariouscivil Service titlessaiary gracles and,above issuein thismatter.(See, 23 at ExhibitA p' l ' which is a compilationreportof total PEF represented employees grade23 andabove in statewide.) 16' The namedpetitioners bring this petitionpursuant cpLR to $901,on behalfof

themselves and similarly situated PS&T Unit members grade23 and, in abovepositio's w'o rvorl<ed uncompensated overtimehoursin connection with the state's response H,rricane to Sandy. 17' Upon informationand beliel PEF represents approximately1,622 similarly 102 aL

situated employeesin salary grades 23 and, above employed at RespondentDor,

Respondent DHSES' 1,092atRespondent DoH and825 at Respor.rdent DEC. (see,ExhibitA n.

5 2' a breal<down responclent by Stateagency the numberof pEF represented of ernployees grade 23 andabove.) Petitioners Ufko, Cirrito, Bobier and Dudek bring this proceedingas representative partieson behalfof all other simirarly situated grade23 and aboveernployees, rvhicharerepresented PEF,because: by
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The class of affected employees is potentiallv so rlumerous joinder of all rnembers, that rvliether othe-rwise pennitted or required, is irnpracticable as there are epproximately14,469people employedin pS&T Unit lrositionsthat are in salarygracles andabove,all of Zi rvhom could potentially haie worked uncompensated ovefiimein connection with Hurricane Sandy. Therefore, this proceeding properly is maintainable a classAction as asprovidedin CpLR g90t (a)I ; Thereare cluestio's law a'd fact common of to the class which predominate over any questions affectingall the i'diviclualmembers, wrrichis whetherthe decisiJn not to pay overtime for hours worked between 40 and 47.50 hours per work week to pS&T Unit ernployees in titles that are allocated to salary grades 23 and above was arbitrary,capricious, irrationaland contraryto law; As provided in C7LR g90l(a)3, the claim of the representative petitioners typicalof the classbecause are tlie representative petitioners' craimsare basedupo' the sarre f-acts and legal theories. The representative petitioners each workecl uncompensated overtime in connection with Hurricane Sandyi'd the Division of the Budget issueda single Budget Item that appliesto all PS&T ernployees tirat worked such overtiml in salary grades andabove23 titles; As providedin CpLR $901(a)4, representative the parlies will fairly and adequately protect interests the class, the of No conflict of i'terest existsbetween lire representatives arrd the cl'ss mernbersor rvitrr respect to trre reiief

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l'cq'cstcd, petitioners'attomey herein is proposedto vigorously, diligentlya'd compete.tly t.qu.ri trre'r all in this proceeding; and l9' As providedby CPLR $901(a)5, classactionis slperior a to orheravailable

Irtetltods the lhir arrdefficientacljudication the conroversy. fbr of The proposed classactionis tlte tttostell'icierrt and su-estnteans rvhichto fairly antl expeciitiously by resol'e the commo' issues rilisedin this proceeding, keepthe coufisilom becoming to potentially ovenvhelneci by possrbly hunclreds even thousands repetitive or of cases. Classtreatment presents most the sttperior trtecltzurisln fairly resolvingsuch common issues lor rvithor.rt repetitious warsteftrl or Iitigation. RESPONDENTS 2tJ' Respondent AtrdrervM. Cuomo is the Governorand Chief Executir.e Olficer

ot'theState New york. of 2l' Respotrdent Divisionof tlie Budget("DOB") is a1 olfice within the Executive

Brattclto1'theNe$' York StateGovemmentrvith the powers and dr"rties conferred the //. ),. by Exectttit,e Luv, ttt'td other relevant rules,regulations statutes. and 22' Respondent DOB is chargedwith the responsibility among other things, of,

fbnlrtrlation the Budgetand supervision, of investigation coordinatiol theexpenditures and of o1'the olficesof the StateExecutive Branch. 23. Respondent RobertL. Megnais, and at all relevanttimes hereinrvasthe cluly

appointed Directorof'the Budgetr,r,ith principleoffice locatedin the his Countyof Albany, State New York. Respondent of Megnais beingsuedin lrisofficialcapacity.

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Respondent DOT is an olfice within the Executive Branchof Nervyork Statc

Govetrrnrc'ttt rvith the porversand duties conferredby the N.y. Exectttive Ltnv ancl other rclet,ant nrles, regulatiorrs statutes. and 25' RespondentDOT is responsible for coordinatingand assistipgi1 the

developmentand saf'e operation of highr.vay, railroacl,mass transit, port, rvaten.r,ay and aviation f'acilities. 26' . Respondent JoartMcDonaldis, and at all relet,ant times hereinwas the (luly

lppoirtted C'on-rnrissioner of DOT, rvithher principle office located tlre Countyof Albany, in Stateof Neu'York. Responderrt i\4cDonald beingsuecl lier otficial capacity. is in 27. Respondent DHSES'uvas created an act of the State by Legislature 2010and in

is comprisedof llve offices tlrat includethe Office of EmergencyManagement (,.OEM"), OIfice of, CounterTerrorism, Office of Cyber Security,Office of Fire and preyentionand Cotttrol, and Olfice of Interoperable antl EmergencyCommunications rvith the mission to provide leadership, coordinationand suppofi for efforls to prevent,protect against, prepare fbr, respond naturaldisasters, to, threats, firesand otheremergencies. 28. Respondent JeromeM. Hauer is, and at all relevzrnt times hereinwas the dr.rly

appointed Comtnissioner DHSES, with his principleoffice locateditr the Cou'ty of of Albany,Statc New Yorl<. Respondent of Haueris beingsuedin his officialcapacity. 29. Respondent DEC is an officewithin the Executive Branchof New york State

Governntetit with the powers and duties conferredby the N,Y. ExecutiveLntrt a'cl other relevant rules.regulations statutes. and

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ResPondent DEC is charged rvith the responsibility, amongother thilgs, of

ldrllinisteringprograms designed protectand irnprovethe State'snatural[esources. to 31. Respondent .loseph Martensis, and at all relevant timeshereinwas the duly

irppointed Comrnissioner DEC, u,itli his principleotfice located the Countyof Albany, of in Stateof Nerv York, Respondent Martensis beingsueriin his official capacity. 32. Respondeltt DOII is an office rt,ithinthe ExecutiveBranctr Neiv york State of

Coventntentrvith the porversand duties conferrecl the N.Y. ExecutiveLcnv by and other . relevant mies, regulations statutes, and 33. Respondent DOH is chargedwith the responsibility, among orherthipgs,lbr

trtrdpromotingtlrehealthof Nerv Yorlcers Protecting tlrrough enforcernent publichealth the of artdrelatedlarvs,and tlre assurance qualityhealthcareclelivery. of 3"1. Respondent Nirav R. Shah is and, at all relevanttimes herein,was the duly

appointed Cornmissioner DOH, rvith his principleoffice locatedin the Countyof Albany, of Stateof Nerv York. Respondent Shahis beingsuedin his official capacitv. FACTS 35. Upon infonnationand belief, in connection with Hurricane Sandy'sforecasted

irnpact on New York State,AnclrervM. Cuomo, as Governorof the State of New york declared a State Disaster Emergencyeffective October 26, 2012.rvithin the territorial boundaries of all sixty-two (62) Counties in the State of New york, clirected the itlplemelltationo1'the StateDisasterPreparech'ress arrddesignated plan, StevenK*irr as the

9 State coordinati'g olficer for thedisaster. (A r u s . r h i b iB . ) E t In connectionrvith Govemor cuomo,s Executive order, each of the rcpresentative petitiorlers hereinworkedovertimehoursrelatedto the response recovery and cllorts of' Hu*icane Sandy. lAfficlavitsof Michael ufko (,.ufl<oAfT., tf2,,);Hugh Cirito 36.

copyof theExecutive order No. 47 is attachecl

("cirrito Af f ti2"); Joan Bobier("Bobier Aff. ll2") and Heide-Marie Dudel<. ("Dudek Aff. !f2"),attaclied hereto.) 37' Under the rules and regulations promLrlgated the Directorof t5e Buclget, by

each of the represe'tative petitioners herein,and potentialclassmernbers, ineligibie are to Itccrlle overtinlecredit or to be compensated in cashlor hoursworked of fin excess 40 r,vithin onerveekJ beyondtireirnomar work week. (g 38. N.y.c./1.R. N135.2) class

Hor'vever,during periods of "extreme emergency,, petitioners,and

nlentbers'are eligible for overtimecompensation i' accordance with C,Sr $134(6),and as itnpienrented the Budget Policy and by RepofiingManual Item No. G-I40 (hereinafter "BudgetBulletin Item G- 140'").(A copyof BudgetBulletinItem G-140is attached hereto as Exhibit .) C 39. C^SISs 134(6)authorizes Directorof the Budget the to grantoverlimeineligible

entployees overtinrecompensation dLrring periodsdeemedby the Director to constitute an extreme ernergellcy.

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Budget Bulletin ltem G-i40 authorizes Respondents DOT, DOH, DEC,

DHSESrvith approval the BudgetDirectorto ciesignate of clefined time-periotis .,extreme as enrergencies" rvltenthe fbllowingconditions exist: A' B' The emergency at leastthree(3) ,ays crr-rratio'. is Tlte rtuttrber overtimehours worl<ecl clearly in excess of is of tle hours reasonably required theposition. of The emergency a necessity is and the employee must havebeendirectecl by his supervisorto perfonn ceflain clutiesfor the hours fbr rvhich payntent requested is The ernergency tron-recurring is and one that cannotbe foreseeable or generally anticipated advance. in fExhibitC]

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Upon information belief,in exercise his powers and of underCJZ $134(6) and

itr itccordance with BLrdget BulletinlternG-140,on october 29,2012,etfective october26, 2012' respondent Megna, as Directorof DoB, issueda specialpolicy to ..accommodate,, employee overtitnecompensation essential for work associated with Humicane Sandy,rvhich providedin relevantpart as follows:(A copy of BudgetBulletin Item G-1034is annexed h e r e t o s E x h i b i tD ) . a
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Blanket overtime authorization grantedfor staff in is Gracle27 and below positionsrvho work i' exceis of 47.50hours per work week, provided that such overtime is both essential and diiectly relatedto activities associated with the state's preparationancl responseto HurricaneSandy.Agency Heads rviil be responsibre for determining whichovertime requests furfiil the ',essentials directlyrelated,,criteria. Staff authorized incur overtimeshall be paid at a rate to determined by the Age'cy Head, so rong as sucrr rate is consistent with stanclar<i overtime ruies and coilective bargaining agreements, and does not exceedone :urdore iralf tirnesthe regularhourly rate for time worl<ed in excess 47.50hoursper week. Authorizedpayments of for otherwise overtime ineligible staff in Gracie27 and below positions which are

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submitted the State to comptroller shallbe consiclered pre-approved by t h eD i v i s i o n f B u d g e t . o I E . r h i b iD ] t 12' BetweenOctober25 and November 21, 2012 petitionerUfko worked 73.25

lrortrs overtirne of and 17.50ltoursof theovertime occurred betrveen and 4l.s0hours per 40 tvork rveek in relation to HurricaneSandy.(Ufko Aff., '1J5) (Copies of petitionerUfko,s tir.nesheets this periodare annexed lbr heretoasExhibit E.) rl3' PetitionerUlko specificallyworked in the Emergencyoperation Center

regarding signal operatiottsrvhere ire was primarily charged with the responsibilityof detennining wirat signalsneeded repairandthendeployingrepairscrews. (Ufko 44' Aff., ,13)

Respondent DoT postedon its websitea HurricaneSandy waiver payment

directivethat indicatedthat effectiveOctober26,2012employees in grade27 andbelorv can receiveovertimepay for hoursworkedin excess 47.50 of hoursper week. It frirther provicled that employeesshould indicateon their timesheets that the irours worked betr.veen a'd 40 47 '50 hours should be enteredas "volunteered time." (See copy of NyS IntraDoT News postingupdated January10,2013attached on heretoas Exhibit F.) 45. To date,petitionerUfko has not beencompensated any for hoursworked in

excess 40 hours including 17.50hoursthat he worked of between and 47.50 hours per 40 rvork week in connection with Hurricane Sandy. (Ufko 46' Aff., ,lJ5)

However, based on BuclgetBulletin G-1034 and DOT's rvaiverpayment

clirective,upon infotmation and belief, even if petitioner Ufko and other similarly sitr-rated enrployees DoT, that is, those in grade23 and above positions, of receiveany overtime

t2 colllpensation DoT' sllch ft'om compensation not i.crude will hours worked betrveen a'd 40
47'

47.50per ."vork week. (See, ExhibitF)

Petitio'er Cirrito was specifically assigned assisti,vith organization to of

emergency spill respo'seto identify, assess mitigate and environmental cramage caused the by stornr.(CirritoAff., 113) Betrveen october 25' 2012ancl November 7,2012,petitioner cirrito workeda totalof 5? hottrsilt e'rcess of 40 hoursin relation H'micane to Sandy. (copiesof petitiorier cirrjto's time sheets thisperio<1 for areannexed hereto ExhibitG.) (cinito Aff., as 1r5) 19' Pursuant BudgetBulletin to G-1034,petitioner cirrito was compensated fbr '+4'50 hours of work at one and one-half his normal hourly rate and did not receive compensation 7'5 hoLrrs for of rvork he performed between and 47.s|rrours 40 in co*ection ro I-lun-icane Sancly.(Cirito AtT.,ll5) Between November and November21, 8 2012 petitioner Bobierworked 35.7 5 lrours of overtime and 7'50 hours between40 and 47.s0 per r.vorkweek in reration to HLtn-icane Sandy' (BobierAff'' .ll4)(copies of petitioner Bobier,stimesheets this period for areannexed heretoasExhibitH.) PetitionerBobier was specifically assigned, and deployed, work i' trre to DisasterAssistancecenter in Mastic, New York where srreanswered cars and questions regarding molds and other hazards relatedto irealthconcems res,rtingfrom Hurricane Sandy. 'l'hese dutiesarewithi'the scope of her normaldairydutiesas a pri'cipal sanitarian. (Bobier A1f.,113) 51' 50' 18'

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Petitioner Bobierhas not beencompensatccl any time that she lvorkcdin for 115)

excess her normalr,vork of weekin connection with Hurricane Sandy.(BobierAff., 53.

Petitioner Dr"rdek rvas assignedto assistin settingr-rpthe recoveryef-forts,

prepared and rnobilizedteanlsto do damage assessments, manageil teamsanclthe coordinator thatperlbrmed initial public andprivatedamage assessments, prepalecl reports the executive for andcoordirtated recovery efforts with FEMA PublicAssistance. (DudekAff., 113) 51' On November 2012,respondent 6, DHSESinformedemployees overtime that

paymentsfor overtime worked in connection r,vithHurrrcaneSandy ri,ould not be paid for overtime hours "vorked between 37.50 and 47.50 hours per work r,veekand that no

conlpensation lvould be receivedfor those hours,basedon the guiclance providedfrom tfie DoB. (seeen'rail datedNovember 6,2012 attached hereto ExhibitI.) as 55. Between October25 and January6, 2Ai.3petitioner Dudek worked 237.75

lroursin excess her normal 37.50work weei<and210.75hours in excess 40 hoursper of of r'vorkrveek in connectionrvith Huricane Sandy, this inclucles 67.50 hours that occurred betrveen and 47.50hours. (DudekAff., 111J4,5) 40 (Copies petitioner of Dudek'stimesheets fbr this periodare annexed heretoas Exhibit J.) 56' PetitionerDudek has not been compensated any time that she worked in for

excess her notmal work week includingthe 67.50hoursthat she workedbetween and of 40 47.50 hoursper work r.veek relation Hr-rrricane in to Sandy. (DutlekAff., 115) 57. Basedon BudgetBulletinG-1034,if and whenpetitioner Dudekandsimilarly

sttuated grade 23 and above ernployees DHSES receiveany overtintecompensation of for

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tlteirovertirne incurrecl connection in r,vith Hurricane Sandy, r,villnot inclucie it compcnsation lbr hoursworl<ed betrveen and47.50 per work week. 40 58. CSZ $134(6), plovides authority the thatDOB cansetthe rateof compensation

(br overtinte worl<ed during an e.xtrenre emergency which cannotexceed one and one-half tirnesthe tronnalhourly ratereceivecl suchemployee his regular by in position.However, it cJoes allorv for DOB to changeor createan overtimefloor by increasing statutorily not tlie definedwork week in attempts limit overtimepayments.DOB has essentially a rate of to set zero (0) fbr rvork performed between and 47.50hoursper work week whicir is in violation 40 o { ' C i Z l 1 3 4 ( 6 )a n dB u d g e t t e m G - 1 4 0 . l 59. To date,respondent DOB hasnot authorized paymentof overtimeto Petitioner

Ufl<o, Cirito, Bobier and Dudek or otirer similar situatedemployeesfor hours worked between40 and 47.50 hours per rvork r.veek and in BudgetBulletin Item G-1034,DOB has clezrrly inciicated that it cJoes intend to pay overtimeto the representative not petitioners or otherclassmembers thesehoursr,vorked connection fbr in with Huricane Sandy. AS AND FOR A FIRST CAUSE OF ACTION PETITIONERS ALLEGE AS FOLLOWS: 60. 61. Petitioners reallege eachand everyprior allegation the Petition. of CSt $ 134(6) provides that overtime ineligible empioyeesmay be grante<1

additional compensation upon approval and at a rateestablished DOB duringperiods of by cleeured the DOB to be an extremeemergency.The rateof pay is to be no morethan one by ancl one-half timesthe hourlyrateof pay received an employee theirregular by in position for hoursworkedbeyonda nonnai work weel<.

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ln furtheratrce this statutory of duty,DOB hasprornulgated Bu<tget BullctinG-

t l - i ( ) .( E x h i b iC ) 63. ( E x h i b iD ) t 64. The overlintehours which representative petitioners and sirniiarlysituatetl The Budget Director deentedHuricane Sancly an extreme emergency.

employees are claiming paymentfor in this proceeding were worked dr-rring extreme the cmergency deemedby the BudgetDirectorand rvereworlced beyondthe normalwork week. (Aff. of Ufl<o, Cirrito, Bobier,and Dudek,supra) 65. Thus,petitioners satisired provisions CS, $134(6)and rvereentitledto all of

Paymenttbr all overtime hours worked beyondthe nonnal ivork week in comection r.vith HurricaneSandyat a rate of pay no more than one and one-halftimes the hourly rateof pay received petitioners tireirregular by in positions. 66. CSZ $134(6) does not ar"rthorize DOB to set a cap, or other lirnitationon

overtimecompensation during an extreme emergency. 67. Therefore,limiting oveftimecompensation thosehoursin excess 47.50 to of

that were incuned by petitionersand sirnilarly sitr-rated enrployees with connection to Hurricane Srindy, DOB actedin excess its authority of underCSZ ts134(6). its actions and are arbitrary, capricior-rs, irational andcontraryto law. A S A N D F O R A S E C O N DC A U S E O F A C T I O N PETITIONERS ALLEGE AS FOI,LOWS: 68. Responclent Directorof the Budget promulgated BudgetBuiletinItem G-1034

that grantedblanketovertimeauthorization otherwiseovertimeineligibleemployees for lor

l6 overtitne rvorl< excess 47.50ltours worl< in of per rveekfbr rvorl< that is essential clirectly ald related activities to associate<i Hurricane rvith San<Jy. (ExhibitD) 69' By inlplementingltem G-i034, responclents improperly expandedtlie

cleflnitionof rrormal rvork rveekas set forth in Csl, $134(l), and effectivelyset a rate of "zero" pay per hour betweer-r .nd 47.50 40 hoursworked. l0' The policy furlher provided that agency heads r.vould be responsible fbr

cletennining rvhat overtimerequests were essential and directly relatedto HurricaneSan4y and settingthe rate for paynlentof overtimehoursr,vorked. The rate was not to exceecl one andone-half tirnesthe regurar hor-rrly of the employee. rate (ExhibitD) 1l' To datepetitioners similariysitLrated members positions and PEF in allocated

to grade23 and higherhavetrot beenpaiclfor overlime."vork ;t0 between and 47.50 hoursin connection rvith HurricaneSancJy. 12. Respondents violated C,SZ\S 134(6)by not applying the overtimerate of, one

iitrd one-half times the regularrate for all overtime hours worked beyond the normal work week by representative petitioners, and all other similariy situatedemployees, eachwork for lveekworkeddr_iring extreme an enlergency. 73' Therefore, respondents'failure to authorize payrents to representative

petitioners' and all other sirnilarlysituated employees, all overtimeworked,incluciing for oveftinrethat occurredbet'"veen and 47.50 hours,in 40 conjunction r.vith Hurricane Sandy rvas,and is, arbitrary,capricious, irrationalandcontraryto law.

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Tlttts,this Courtshoulcl orderrespondents pay compensation all overtime to for

Itours, includingthosebetlveen and 47.50hoursrvorked ernployees salary 40 by grades in 23 itnclitbovepositionsin connection rvith HLrricane Sandyat a rateof one and one-half timcs the regular ir rateof pay. A S T \ N D F O R A T H I R D C A U S EO F A C T I O N PETITTONERS LLEGE AS FOLLOWS: A 75. 76. Petitioners reallege eacl'r everyprior allegation thePetition. and of Respondents haveviolatedC.9, $134(6)and BudgetBulletinItem G-140by

not paying ovenime in conjLrnction petitioners to and otirer similarly srtuated employees for lroursu'orked between40 and 47.50 hours and for r-rnpaid hoursworked in excess 47.50 of hoursper rvork week in connection with Hurricane Sandy. 77. Upon infomrationand belief,respondent Agencieshavealsonot submitted the

petitioners' requestfbr overtirne compensation the Directorof the Budgetfor hoursworked to between and 47.50 hoursin relation Hurricane 40 to Sandy. 78. To date,eachrepresentative petitioner hereinhasworkedthe followingamount

of overtintein connection rvith the State'sresponse HLrrricane to Sandyfor which they have not beenpaid cornpensation between and47.50hours: 40 MichaelUll<o Hugh Cirrito JoanBobier Heide-Marie DLrdek 17.50 ours h 7.50 hours I.50 hours 6 7 . 5 0h o u r s

(See, AlTof Ufl<o,Cirrito,BobierandDudek,surpra)

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Uprolt iltforrlation ancl beliet,on January 2013 Respondent i0, DoT posted on

tts rvebsite Hurricane a Sancly wzriver payment directive that intlicated that effective October 26' 2012 employeesin grade27 artdbelolv can receiveovertime pay for hoursworked in excess 47.50hoursper week. (ExhibitF) of 80' In Respondent DoT's directive, provided it that ernployees shouldindicate o.

tlreir tinresheets that the hours worl<ed between and 17.50hoursshouldbe enterecl 40 as "r,olunteered time." (ExhibitF) 81' on November 2012,respondent 6' DHSESinformedernployees overtime tliat

paymentsibr overtime tvorked in connection with HurricaneSandy wouid not be paid for oveftinle hours '"vorkedbetween 37.50 attd 47.50 hours per rvork week and tlat no compensatton lvould be received thosehoursbasedon the guidance for provide<l from tSe D O B . ( E x h i b i tI ) 82. Upon informationand belief,Respondent Agenciesdetermined that all of the

ovefiinrework claimedby petitioners this proceeding in rvas essential and directlyrelatedto HurricaneSandy. 83' Petitioner cirrito was compensated a rate of one and one-half at tirneshis

regularhourly rate of pay for thosehoursof overtime work in excess 47.50hoursof work of per work week. (Alf. of Cirrito, supra) 84. Petitioners Ufl<o,Bobierar-rd Dudekhavenot beeircompensated any hours for

rvorkedin excess 40 hoLrrs relationto Hurricane of in Sandy. (Aff. Uiko, Bobier and Dudek. sLlpra)

l9

85.

Rcpresentative Petitioners ltarve rcceivedcornpensation, Respondent rrot and

Agencieshave clearly indicated that it rvill not compensate Petitioners, any other the or sinrilarly situated employees, lorthe hours overtime rvorl< of perfbrmed between ancl41.50 40 hoursof lvork in reiationto HunicaneSandy. (Aff. of Ufl<o,Cirrito, Bobier,and Dudek, supra) 86. The overtime r'vorkpertbmiedby Representative Petitioners between and 40

per 47.50l.tours work rveekwhich they lverenot paid rvasalso essential directlyrelated and to Hurricane Sandy. 87. Respondents agenciesvioiated CSL $ 134(6) becausethey failed to pay

petitionerslronetary conlpensation all overtime hours worked in conjunctionwith the for extreme ernergency declared the BudgetDirector, by 88. Respondents violatedCSZ $134(6)by, in ef'fect, paying petitioners, other and

similarly situatedemployees, a rateof zero (0) for overtimehoursworkedbetr,veen and at 40 47.50 hoursfor eachr,vork r,veek r,r,orl<ed driringan extremeeutersencv. 89. Therefore, respondents' failureto pay petitioners, intentionnot to pay, for or

ail overtimeperformedin conjunction with Huricane Sandyr,vas, is, arbitrary, and capricious, inational and contrarvto law. AS AND FOR A FOURTH CAUSE OF ACTION PETITIONERS ALLF]GE AS FOLLOWS:

90.

Petitioners reallege each andeveryprior allegation the Petition. of

20

91.

Respondent DOH violatedCSZ $134(6) and BudgetBulletinItemsG-140and

C-1034as it relusesto pay any overtimecompensation Petitioner to Bobier,and ali other sirnilariy situated employees, overtirne fbr performed connection in with HuricaneSandy. 92. Respondent DOH has made no indication that it will compensate Petitioner

Bobier,or other simiiarlysituated employees, any overtime for hoursworked,eventhosein excess 47.50,in connection of rvithHurricane Sandy. 93. The ovefiime rvork performedby PetitionerBobier, and other similarly

sitrrated en.rployees, between and47.50hours, 40 and in excess 47.50hoursperwork week of rvhichPetitionerBobier, and other similarly situated were not paid was essential employees, anddirectlyrelated Hurricane to Sandy. 94. Petitioner Bobier, and other similarly situatedemployees, performedduties

that r,vere within the scopeof her nomral day to day duties. Thus, they could not lawfully volunteer worl<overtime to withoutbeingpaidovertime compensation. C.F.R. 29 785. 95. Respondent DOH violatedCSZ $134(6) and BudgetBulletinItemsG-140and

G-1034because failed to pay petitioner it Bobier,and other sirnilarlysituated employees, monetary compensationfor all overtime hours rvorked in conjunctionwith the extreme cnrergency declaredby the Br"rdget Director. 96. Respondent DOH violated C.tI $134(6)by, in effect, paying petitioners a at

rate of zero (0) for overtinrehoursr,vorked between and 4l .50 and hoursworl<ed excess 40 in of 47.50hoursfor eachwork weekworkeddurinean extreme emersencv.

21 'fherelbre,

97.

responcients DOH's f'ailureto pay petitioner Bobier, anrl other

similarly situated enrployees, intention not to pay, for all overtinteperfbrmedin or conjunctiotr rvitl-r I{urricaneSandywas, and is, arbitrary, capricions, irrationaland contraryto law. 98, 99. Petitioners haveno adequate remedyat law. Petitioners havemadeno prior request the relief soughtherein. for

WHEREFORE, Petitioners respectlullyrequesttirat this Court grant the following reliefi (a) ORDER, ADJUDGE and DECREEthat the actionsof Respondent Division of

tlie Budgetin lailing or relusingto authorize representative petitioners and similarlysituate<i employees extremeemergency oveftime compensation, overtimeiroursworked between for 40 and 47.50,as indicated Item G-1034violatesCivil Senice Luyr ii134(6)and Buclget in Bulletin ltem G-140 and is arbitrary, capricious, irrationaland contraryto law; and (b) ORDER, ADJUDGE and DECREE that Respondent DOB authorize payment

to petitioners extremeemergency for overtimepay for the period beginningOctober26,2012 for hoursworked between40 and47.50 hoursper work week;and (c) ORDER, ADJUDGE and DECREE that in the event this Court finds that

Respondent Agenciesfailed or refusedto requesttliat the Director of the Budget authorize petitioners extremeemergency overtimepay for period beginningOctober26, 2012relating to the Huricane Sandy,that this Courtgrantjudgrnent; L Declaring Respondent Agenciesrefusalor intendedrefusalor failtrre to reqLlest that the Director of the Budget authorize

22

e.xtreme entcrgency ovcrtintepay fbr said period, for hours rvorkedbetrveen and 47.50 by PS&T Unit employees 40 in grade 23 and above positions,is arbitrary,capriciousand contraryto law.

2.

Directing Respor-rdent Agenciesto requestthat the Director of the Budget autl-rorize petitioners' and sirnilarly situated ernployees extreme emergency overtime pay, including overtirnepay lbr hours r.vorked between and 47.50, for the 40 periodbeginning October 26,2012relating Hurricane to Sandy. Directing that respondent DOB autirorize payment upon sucl.r request Respondent by Agencies. Directing Respondent Agencies pay compensation for all overtime,includinghoursworkedbetween and 47.50 hours, 40 u'orkedby empioyees salarygrade23 andabovepositionsin in connectionto HurricaneSandy at a rate of one and one haif tirnes theirregular houriyrateof pay. AWARD Petitioners costs, disbursements this proceeding, the and of and CERTIFYING petitioners representative the classof all PEF-represented as of

J.

4.

(d) (e)

ernployees tl-re in titlesat issuein thisproceeding extending relief in the said judgment and the to all nlembers saidclass. of (1) GRANT suchother anclliulher relief as the Court may bejr.rst andequitable,

DATED: Febmary 26,2013 Albany,NewYork

LISA M. KING, ESQ. Attomeyfor Petitioners OfficeandP.O.Address I 168-70 Troy-Schenectady Road P.O.Box 12414 Albanv.New York 12212-2414 (518)785-1900, Extensiott 241
tJy:

ERICKWA Of Counsel

sKI, ESQ.

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