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April 5, 2011

Certification of the payroll critical to lawfully paying an individual in the classified service

Certification of the payroll critical to lawfully paying an individual in the classified service
Eldridge v Carmel Cent. School Dist. Bd. of Educ., 2011 NY Slip Op 02620, Appellate Division, Second Department

The Personnel Officer of Putnam County, who also serves as the Personnel Director for the Putnam County Personnel Department, Paul Eldridge, sued the Carmel Central School District’s Board of Education and a number of employees of the District pursuant to Civil Service Law §102(2) to recover certain sums that were allegedly illegally paid by the School District to an individual in the classified service that had been employed by the District without the certification required by the Civil Service Law §100.*

Eldridge contended that the School District “illegally paid or authorized payment of salary or compensation to nonparty Joseph Gramando, totaling approximately $233,245” during the period February 10, 2006 through October 15, 2008, which payments Eldridge alleged were not properly certified as required by Civil Service Law §100(1)(a).

In response to a number of technical objections to the parties named as defendants in Eldridge’s petition, the Appellate Division, noting that the Board of Education was not an officer within the meaning of CSL §100(1)(a), said that Supreme Court should have dismissed Eldridge’s complaint with respect to the Board as an entity being named a defendant but that the complaint sufficiently alleged that School Board members “Kreps, Riley, Dougherty, MacDonald, Nesheiwat, Port, and Shilling,” as individual members of the Board of Education, were "officers by whom [nonparty Joseph Gramando] w[as] appointed in violation of the provisions of law and of the rules made in pursuance of law."

Further, said the court, Eldridge’s complaint sufficiently alleged that the officers of the District that he named in his petition, Terranova, Wilson, Stark, and Haywood, were "officer[s] signing or countersigning or authorizing the signing or countersigning of any warrant for the payment of" salary or compensation distributed to nonparty Joseph Gramando contrary to the provisions of Civil Service Law §100.

Among the defenses raised by the board members and district officers were the following:

1.      Eldridge failed to notify "the appropriate disbursing and auditing officers" that Gramando was being employed in violation of the law. 
The Appellate Division rejected the argument, holding that such notice that a person has been "promoted, transferred, assigned, reinstated or otherwise employed" in violation of the law is not a condition precedent to an action to recover sums illegally paid under Civil Service Law §102(2). Further, said the court, the “defendants failed to submit documentary evidence conclusively establishing that the salary and compensation allegedly paid to Gramando in violation of the law was properly certified by the civil service department or municipal commission having jurisdiction, as required by Civil Service Law § 100(1)(a).”

2.      Eldridge failed to serve a timely serve a notice of claim as required by Education Law § 3813(1). 
Citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, the Appellate Division rejected this defense as well, commenting that “Contrary to the defendants' contention, an action commenced pursuant to Civil Service Law §102(2) is an action ‘to vindicate a public interest’ to which the notice of claim requirement in Education Law §3813(1) does not apply.”

3.      The action brought was untimely as barred by the one-year statute of limitations in Education Law §3813(2-b). 
The court said that "All of the public policy considerations for finding that Education Law §3813's notice of claim requirement is inapplicable to [this action] are equally valid with respect to the Statute of Limitations set forth in [Section 3813(2-b)]" and since the action is to recover upon “a liability, penalty or forfeiture created or imposed by statute" a three-year statute of limitations is applicable. Accordingly, Eldridge’ action to recover sums allegedly illegally paid said the Appellate Division, ‘should be limited to the money paid to Gramando on or after June 2, 2006, citing General Construction Law §20.

In response to another argument advanced by the defendants, the court commented that Eldridge was not required, nor does he have the authority, to extend or terminate provisional appointments. It is the obligation of the appointing authority to terminate all provisional appointments "within two months following the establishment of an appropriate eligible list for filling vacancies" (Civil Service Law §65[3]).

The court explained that power of the civil service department and municipal commission lies in their ability to withhold certification "from an entire payroll or from any item or items therein." (Civil Service Law § 100[1][a]).

The Appellate Division said that the allegations in the complaint were sufficient to establish that the individual defendants “continued to pay and approve salary and compensation to Gramando after the expiration of his provisional appointment and without proper certification of the payroll

* Subdivision 1(a) of Civil Service Law §100, Certification of payrolls, in pertinent part, provides that certification of the payroll is required and that “no disbursing or auditing officer of the state or of any civil division thereof shall approve or pay or take any part in approving or paying any salary or compensation for personal service to any person holding an office or position in the classified service unless the voucher or payroll therefor bears the certificate of the civil service department or  municipal commission having jurisdiction that the persons named therein  are employed in their respective positions in accordance with law and  rules made pursuant to law. The certificate of municipal commissions shall also include a statement of membership in an appropriate retirement system where such membership is mandatory.”

The decision is posted on the Internet at:

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