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Decision No. 16,326

Appeal of ROBERT TROELLER, as President and Business Manager of Local 891, International Union of Operating Engineers, AFL-CIO, from action of the New York City Department of Education regarding out-of-title work.

Decision No. 16,326

(February 2, 2012)

Spivak Lipton LLP, attorneys for petitioner, Neil D. Lipton, Esq., of Counsel

Michael A. Cardozo, Corporation Counsel for the City of New York, Jessica Giambrone, Esq., of Counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to assign school plant managers to supervise private sector contract employees.  The appeal must be dismissed.

Petitioner requests a declaration that requiring school plant managers to directly supervise private sector contract employees constitutes out-of-title work in violation of Civil Service Law §61(2) and that I order respondent to discontinue such practice.

Respondent alleges that petitioner lacks standing and that the appeal must be dismissed for lack of subject matter jurisdiction.  Respondent contends that its actions are legal, proper and reasonable.

The appeal must be dismissed for lack of subject matter jurisdiction.  Civil Service Law §17 vests jurisdiction to administer the provisions of the Civil Service Law, with respect to the offices and employments in the classified service, in the applicable civil service commission, personnel officer or other form of civil service administration.  In case of the City of New York, the City is empowered to administer the Civil Service Law through whatever form of administration it chooses to prescribe in its city charter (Civil Service Law §15[4]; Matter of City of New York v. City Civil Service Commission, 60 NY2d 436).  Civil Service Law §102(3) authorizes actions in State Supreme Court to enjoin violations of the Civil Service Law. 

Under Civil Service Law §35(g), the Commissioner of Education has jurisdiction over the qualifications for appointment and duties and responsibilities of titles in teaching and supervising staff of school districts.  However, there is nothing in the record establishing that the position at issue herein, school plant manager, has been certified by the Commissioner of Education pursuant to §35(g) of the Civil Service Law as a position of the teaching and supervisory staff of school districts or other applicable unit of the State school system and, therefore, within the unclassified service.  Indeed, no such certification has been made.  Insofar as petitioner alleges a violation of §61(2) of the Civil Service Law as it pertains to employment in the classified service, a determination of such question requires special knowledge and expertise regarding employment requirements within such classified service – matters not within the purview of the Commissioner of Education.  Therefore, I decline to exercise jurisdiction to review the matter pursuant to §310 of the Education Law.

In light of this disposition, I need not address the parties’ remaining contentions.