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Wednesday, July 10, 2013

Discontinuing the performance of a governmental operation

Discontinuing the performance of a governmental operation
Civil Serv. Employees Assn., Inc. Local 1000, AFSCME, AFL-CIO v County of Onondaga, State Supreme Court Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) brought an Article 78 petition seeking a determination that Onondaga County acted in violation of law and in an arbitrary and capricious manner by authorizing the sale of the County owned Van Duyn Home and Hospital Facility. CSEA also alleged that the County “acted in bad faith by adopting a budget that zero-funded positions at Van Duyn.”

After considering a number of procedural issued, Judge Donald A. Greenwood addressed the merits of CSEA’s petition.

CSEA’s first claim in its petition alleged that the Department of Long Term Care Services was created by the County Charter and that the elimination of that department, along with the positions employed within it, without passing an amendment to the Charter, was arbitrary, capricious, an abuse of discretion, violative of law and in excess of the County’s jurisdiction in that the County Legislature lacked the authority to adopt a budget striking salary appropriations, thereby eliminating the operations of the department without affecting an amendment to the Charter.

In effect, CSEA contended that the action offended the doctrine of legislative equivalency, also known as the legislative equal dignity rule.* (1995). The Court of Appeals has summarized the principle by stating "to repeal or modify a statute requires a legislative act of equal dignity and import."

Judge Greenwood decided that CSEA’s argument was “both factually and legally flawed.” explaining that the County demonstrated that through the annual budget process established within the County Charter and Administrative Code, the Legislature declared its intent” to be out of the nursing home business, and abolished a number of positions related to provisions of such services at Van Duyn, and determined that the facility should be sold.” This legislative act, said the court, carries with it a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for its provisions.

In addition, Judge Greenwood said that the County demonstrated that the facts here justified the legislative decision to sell the facility while retaining operating rights, to enact a local law amending the Administrative Code to reorganize the Long Term Care Services Department and eliminate job titles effective November 30, 2013.

The court also noted that “the County is authorized to enact legislation establishing its form of government … and generally regulating its affairs, provided that such legislation is consistent with state law and [it] is empowered to establish and abolish positions of employment by resolution as part of the budget process.”**

As to CSEA’s contention that the “elimination of union jobs here constitutes a bad faith abolition of the positions,” the court said that “municipal officials are vested with authority to create and abolish positions and to adopt a budget; they also have the power and the prerogative to determine that civil service positions may be abolished in good faith for reasons of efficiency and economy in the absence of fraud, corruption or bad faith.”

As to CSEA’s claim of bad faith on the part of the County, CSEA was required to show that the positions in question were not eliminated for bona fide reasons, that savings were not accomplished or that replacement employees were hired. Judge Greenwood found that CSEA had not met this burden and dismissed its petition seeking a court order invalidating the sale of the facility and nullifying the budgetary elimination of the positions by the County Legislature..

* In Torre v County of Nassau, 86 NY2d 421, the Court of Appeals noted that the Doctrine of Legislative Equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act.

** The decision notes that the budget resolution, Resolution #160-2012, established the budget for 2013 and declared the County's policy with respect to discontinuing future provision of nursing home services and further provided for the abolition of roster positions, except for two positions established by the County Charter and Administrative Code.

The decision is posted on the Internet at:

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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