William P. Seamon, Albany (
Edward J. Aluck of counsel), for petitioners.
Eliot Spitzer, Attorney General, Albany (
Jeffrey P. Mans of counsel), for respondents.
OPINION OF THE COURT
BERNARD J. MALONE, JR., J. The petition is granted to the extent that the petitioners are awarded a judgment annulling as arbitrary and capricious the determination of the Director of the New York State Division of the Budget (hereinafter the Division of the Budget and its "Effective September 11, 2001 the Division of the Budget, in consultation with the Governor's Office of Employee Relations, is instituting a special policy to accommodate employee overtime compensation for essential work associated with the September 11th World Trade Center disaster. This Bulletin provides commissioners and agency heads with additional flexibility to manage personnel resources within existing budget allocations. This bulletin also recognizes the unique and unprecedented nature of the World Trade Center disaster and the drastic measures some agencies must take in deploying staffs that are critical to the State's efforts.
"OVERTIME
"1. Blanket overtime authorization is granted for staff in Grade 27 and below positions, provided that such overtime is both essential and directly related to activities associated with the State's response to the World Trade Center disaster. Agency heads will be responsible for determining which overtime requests fulfill the `essential and directly related' criteria.
"2. Staff authorized to incur overtime shall be paid in a manner determined by the agency head. Compensation can be allowed for time actually worked consistent with standard overtime rules and collective bargaining agreements. However, the hourly rate shall not exceed one and one half times the regular hourly rate of the employee for time worked over 40 hours per week. Authorized payments for otherwise overtime ineligible staff in Grade 27 and below positions which are submitted to the State Comptroller shall be considered pre-approved by the Division of the Budget."
Petitioners were directed by DMNA to work overtime due to the extreme emergency caused by the World Trade Center attack. The petitioners worked the following amount of overtime hours: Holmes—383 hours; DiNuzzo—406 hours; Anderson—311.25 hours; Hein—242.25 hours; and Neary—448 hours. To meet its statutory duty to set the overtime rate DOB, according to paragraph nine of the affidavit of DOB Chief Budget Examiner John E. Burke, set the hourly rate of overtime at 1½ times the regular hourly pay rate of the petitioners. Sometime after the overtime was earned, DOB apparently made an oral determination that the 12% of basic annual salary overtime limitation set forth in Civil Service Law
Section 134 (5) authorizes overtime pay in certain situations that are not of an extreme emergency nature. The statute directs DOB to set the rate of the overtime pay. Additionally, the Legislature has imposed a 12% of base salary cap upon the amount of overtime pay that can be received in nonextreme emergency situations. The Legislature has invested DOB with no discretion concerning the 12% cap, as it applies no matter what rate of overtime pay DOB sets. Clearly, the 12% cap is not part of the overtime rate setting function the Legislature has delegated to DOB or there would have been no need for the statutory language creating the cap after the statutory language giving the rate setting discretion to DOB. In Civil Service Law § 134 (6) the Legislature grants the overtime rate setting function to DOB but chose not to place a cap upon overtime earned in extreme emergency situations. This court is required to assume that the Legislature intentionally capped nonextreme emergency overtime payments and intentionally did not cap such payments in extreme emergency situations. Furthermore, this court must assume that if the Legislature wanted there to be such a cap upon extreme emergency situation overtime payments it would have placed language into section 134 (6) that was similar or identical to the cap language found in section 134 (5). Respondents have pointed to no statutory or necessarily implied authority giving DOB the power to set aside the Legislature's decision that there is to be no cap upon overtime pay earned in extreme emergencies, and this court is not inclined to invent such authority to deprive state workers of overtime pay they earned when ordered by respondents to serve the citizens of this state in a time of the most extreme peril. [*] Civil Service Law § 134 (5) concerns mundane overtime authorization unrelated to extreme emergencies.