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Monday, March 26, 2012

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code
Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division, Fourth Department

When the Town Board of Town of Amherst (Board) terminated James D. Peck’s employment with the Town because he failed to satisfy the residency requirements set out in the Town’s Code,* he filed an Article 78 challenging the Town's action.

Supreme Court dismissed certain allegations advanced by Peck but held his allegations that the Board's determination was arbitrary and capricious and that the Board failed to make findings of fact in support of its determination in abeyance, remitting the matter to the Board "for a fuller explication of its rationale for determining that [Peck]" failed to satisfy the residency requirements.

Although the Town invited Peck to appear before the Board and present evidence of his being domiciled within the Town, neither he nor his attorney appeared at that meeting. Peck’s attorney, however, subsequently submitted documentary evidence that allegedly established Peck’s domicile in the Town.

Upon receipt of the amplified findings of fact made by the Board, Supreme Court dismissed these remaining causes of action, determining that the Board's determination resulting in Peck's termination was neither  arbitrary nor capricious.

Peck’s appealed, contending that Supreme Court erred in remitting the matter to the Board for further findings of fact. The Appellate Division dismissed this argument, noting that he was not prejudiced by the remittal inasmuch as, in doing so, Supreme Court effectively extended the date for him to establish a domicile in the Town and that the remittal also afforded him another opportunity to answer questions from the Board concerning his claim that he was domiciled within the Town and to submit additional evidence in support of that claim.

As to domicile, the Appellate Division explained that:

[1] ”An existing domicile, whether of origin or selection, continues until a new one is acquired, and a party, [such] as [Peck] here, alleging a change in domicile has the burden to prove the change by clear and convincing evidence;" and

[2] "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention' to abandon the former and make the new locality a fixed and permanent home."

Peck, said the court, “was not domiciled in the Town when he was hired, nor was he domiciled there for at least two years after that time.”

Although the Town granted Peck two six-month extensions to meet the residency requirements, it denied his requests for further extensions, indicating that it intended to enforce the residency requirements against him. Peck then claimed that he had established domicile by renting a room in a house located within the Town despite his earlier acknowledging that renting "that room would not satisfy the Town's residency requirements."

Notwithstanding Peck’s claim that he thereafter informed the Town that he was "losing" his home in Buffalo to creditors and thus demonstrated that he intended to make the single room that he rented in a house in the Town his domicile, the Appellate Division said that “There is no evidence in the record” supporting such an allegation.

Further, said the court, “the mere fact that [Peck] may have been losing his home in Buffalo did not standing alone establish that his domicile was in the Town” and affirmed Supreme Court’s dismissal of Peck’s Article 78 petition.

* The relevant provisions of the Town Code provide: § 45-3, "any person who enters Town service . . . shall be a resident of the Town on the date that the employee enters Town service and shall thereafter maintain residence in the Town as a condition of employment . . . Failure to establish or maintain Town residence as required by this section shall constitute a forfeiture of employment . . . ." The Code defines "[r]esidence" as "[d]omicile" and "[r]esident" as "[d]omiciliary" (§ 45-2).

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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