Claiming entitlement to payment for unused vacation and sick leave credit upon resignation
Sherwood v Town of Lancaster, 2010 NY Slip Op 06057, Decided on July 9, 2010, Appellate Division, Fourth Department
Richard J. Sherwood “abruptly resigned” from his position of Town Attorney, Town of Lancaster, “in order to avoid his imminent termination.”*
Sherwood subsequently filed a petition pursuant to CPLR Article 78 seeking credit for unused vacation and sick leave accrued as of the date of his retirement from his position as Town Attorney. Supreme Court ruled that Sherwood was ineligible to receive a credit for unused vacation and sick leave that he had accrued and he appealed.
The Appellate Division noted that the controlling provision set out in a collective bargaining agreement** addressing the liquidation of accrued but unused vacation days in Sherwood’s situation provided that "[i]f an employee is separated from Town service for any reason except termination for cause or resignation on less than ten working days' notice, he/she shall be paid in full for any unused vacation to which he/she is entitled."
It was undisputed that Sherwood gave less than 10 working days' notice of his resignation. The Appellate Division said that Sherwood would have been entitled to a credit for unused vacation days that he accrued had he not resigned and simply awaited the Town Board's decision not to reappoint him. “As he instead chose to resign effective immediately, he is not entitled to that credit.”
However, said the court, Sherwood also contended that he was entitled to “a credit for accrued but unused sick leave pursuant to Article 5 of the [collective bargaining agreement].” Section 5.4.1 provides of the CBA provides that "[p]rior to the retirement, the employee may apply to the Town Board for a lump sum payment of sixty (60%) percent of the cash value of his or her accumulated sick leave as of the date of retirement."
The Appellate Division said that Supreme Court erred in determining that "[s]ection 5.4 of the [CBA] renders eligible only those employees who have actually applied for retirement through the NYS Employee's Retirement System to receive a lump sum payment for accrued sick time." Under the facts regarding Sherwood’s leaving town service, the Appellate Division concluded that the CBA provisions concerning retirement unambiguously apply him” and thus he was a credit for unused sick leave that he accrued.
The court modified the lower court’s decision by reinstating Sherwood's claim for unused sick leave credit under the CBA as well as Retirement and Social Security Law §41(j)*** for the period running from the date of his appointment as Town Attorney effective January 1, 1996, through the date of his retirement, and remitted the matter to Supreme Court to determine “the number of accumulated sick days or hours, if any,” for which Sherwood is entitled to credit.
* Sherwood’s resignation on January 7, 2008 was precipitated by his learning that the Town Board, meeting later that same day, would not reappoint him to the position of Town Attorney.
** The Town Board had earlier adopted a resolution making the provisions of the collective bargaining agreement between the Town and Civil Service Employees Association for the Town's employees in the "White Collar Unit" applicable to unrepresented employees such as Sherwood.
*** Retirement and Social Security Law §41(j) provides for an “Allowance for unused sick leave for members in the employ of the state.” §2.8 of the Retirement and Social Security Law defines the term “employer” as “The state, a participating employer, and any other unit of government or organization obligated or agreeing, under this article, to make contributions to the retirement system on behalf of its employees.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06057.htm
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com