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Tuesday, June 11, 2013

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order
Torpey v Town of Colonie, N.Y., 2013 NY Slip Op 04085, Appellate Division, Third Department

With respect to back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The issue in Torpey: May the compensation due employees reinstated to their former positions in the classified service pursuant to a court order be “reduced by” their earnings in other employments during the period in question.

The employees involved had been terminated from their long-term employment with the Town of Colonie on the ground that they were public officers who were required to, but did not meet, the residency requirement set out in the Public Officers Law. Following their termination, they accepted other employment with the Town for which there was no residency requirement.

The employees then challenged their termination and asked Supreme Court to reinstate them to their former positions "with full back pay, benefits and emoluments of employment."

Supreme Court determined that the employees had been erroneously terminated, finding that the Town had not shown that they were public officers subject to the residency requirements. The court granted the employees’ petition, ruling that the employees were "entitled to be reinstated to their former positions and to all back pay and associated benefits to which they would have been entitled had they not been improperly terminated."

Subsequently a dispute arose between the employees and the Town regarding, among other things, the meaning of the court's directive that employees were entitled to "all back pay," i.e., whether the back pay awards was to be “reduced by” the employees' earnings while employed by the Town as laborers, as the Town claimed, or whether they were entitled to full back pay without any such offset, as the employees argued.

The employees then asked Supreme Court “to resettle and/or clarify the court's prior judgment regarding back pay.” Supreme Court denied their motion, finding it represented an improper attempt to amplify and expand upon the court's prior decision and the employees appealed.

The Appellate Division agreed with Supreme Court, concluding that the employees’ motion “was one to resettle and/or clarify Supreme Court's prior judgment regarding back pay.”  Such a motion, said the court, is designed "not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision.” Such motions rest on the inherent power of courts to "cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties."

In this instance the Appellate Division decided that the employees’ motion in Supreme Court sought to amplify and substantively amend, not merely to clarify, Supreme Court's prior judgment relating to back pay, “by invoking for the first time Civil Service Law provisions* in support of their argument that the back pay award should not be offset by earnings as Town employees during the period in which they had been improperly terminated, points which should have been raised and argued before a determination was rendered on their petition.”

The Appellate Division’s rational: “Such an offset would directly affect the amount of back pay owed by the Town and, as such, would clearly have ‘alter[ed] [a] substantial right[] of the parties.’”

Holding that “Under established precedent, no appeal lies from the ‘denial of a motion to resettle [or clarify] a substantive portion of an order,'" the Appellate Division dismissed the employees’ appeal.

* Presumably the Appellate Division did not view the employees’ reinstatement by Supreme Court as being within the ambit of Civil Service Law §76.3 or  §77 and thus the provisions of neither §76.3 nor §77 were operative in this instance as a matter of law.

The decision is posted on the Internet at:

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