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Thursday, July 05, 2012

Simple majority vote required for most personnel actions taken by a Board


Simple majority vote required for most personnel actions taken by a Board
Inquiry from a NYPPL reader

From time to time a reader will submit a question concerning a personnel matter that may be of general interest to the readers of New York Public Personnel Law. In this instance the reader submitted an inquiry regarding the termination and reinstatement of police officers or firefighters by a Town or Village Board. The question: "Does a Town Board or a Village Board need a 'super majority' to either terminate or reinstate a police officer or firefighter?"

In your editor's opinion, unless there is a law, rule, regulation or a provision in a collective bargaining agreement providing otherwise, generally all that is required to appoint, suspend, terminate or reinstate an individual to a position is a simple majority of a board when a board is the “appointing authority.”

For example, Education Law Section 2573(1)(a) permits the termination of a probationary teacher "at any time during [the individual's] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education" while Education Law Section 2509(2) states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure.

With respect to the granting of tenure by a board of education, the Commissioner of Education rejected the theory that a majority voting against tenure was required to deny a teacher tenure in the district [Decisions of the Commissioner of Education Decision No. 14,337]. In other words, unless there is an affirmative vote by a majority of the members of the school board to grant the individual tenure, he or she cannot claim tenure except in those relatively rare situations where the individual attains tenure by acquiescence or estoppel by operation of law.

As to a “super-majority” vote requirement, in some instances this is provided for by statute.

In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d 766, the Court of Appeals pointed out that where a planning commission recommends that the application for a special use permit be denied, General Municipal Law §239-m requires a “super-majority” vote by the town board in order to overturn the commission’s recommendation.

In Headriver, following a public hearing, the Board voted 3-2 to grant the special use permit. As the statutory super-majority requirement [i.e., a 4-1 vote], the commission's recommendation had not been overturned by the Board as the statute required “a vote of a majority plus one of all the members thereof.”

In another case, the court ruled that the Brookhaven Town Board violated its own procedures when it considered a resolution less than 90 days after earlier rejecting it. The Board’s procedure mandated that "A Resolution, Local Law or Ordinance that receives less than a majority of votes shall not be reintroduced for ninety days (90) or unless this rule is waived by a super-majority vote of the Town Board." [East End Property Co. No. 1 LLC v. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].

Additionally, General Construction Law §41 requires a majority of the entire board to take any official action. Relying on this provision, the Commissioner of Education ruled that a school board may not adopt a policy requiring affirmative votes by more than a majority of the whole number of the board to take official action because neither the Education Law nor the General Construction Law authorizes a board to adopt requirements in excess of those already provided by statute (Miller, 17 Ed Dept Rep 275).

In contrast, Education Law §3016(2) requires a two-thirds vote of the board to appoint a relative of a board member to a teaching position, rather than the simple majority to appoint a non-relative, thus requiring a "super-majority" to appoint a board member's relative to a teaching position.

As earlier noted, a “super-majority” may be “a majority of all voting members of a body, plus one;" a specified number such as a two-third or three-quarter vote; or in rare cases, a unanimous vote by the body.

On a related issue, "Determining if a quorum required to conduct official business is present," see Formal Opinions of the Attorney General 2008-F1.

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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