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October 09, 2018

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee
Phillips v Town of Glenville, 2018 NY Slip Op 02702, Appellate Division, Third Department

§5 of the Public Officers Law addresses situations in which an incumbent is continues to be employed in the position after expiration of his or her term office and provides, in pertinent part, that "Every officer except a  judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor." §5 further provides that "An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms."*

In Phillips v Town of Glenville the Appellate Division addressed the a number of issues resulting from a "holdover" employment situation.

George J. Phillips was appointed to the office of Comptroller for Town of Glenville in 2001 and was subsequently reappointed to the position biennially, the last such appointment being for the period January 1, 2008 thru and including December 31, 2009. In January 2010 the Town Board notified Phillips that he would not be reappointed to the office of Comptroller, but that he could continue on as Acting Comptroller pending the appointment of his successor. In December 2012 in the course of a Town Board meeting the Town Board authorized the Town Supervisor terminate Phillips employment, effective December 31, 2012.

The Town Supervisor met with Phillips on December 28, 2012 and advised him that his employment was being terminated as of December 31, 2012 and later that same day Phillips was given a from the Town confirming his termination. Notwithstanding receiving notice of his termination, Phillips submitted an email to the Town's Deputy Supervisor on December 31, 2012 indicating his intention to resign and requested payment for certain accrued sick time. On January 2, 2010 Phillips submitted a notarized letter to the Town Clerk, resigning from his office with the Town.

Ultimately Phillips initiated a lawsuit contending that [1] his termination from employment was without legal effect as it was contrary to law; [2] improper and taken in bad faith; by operation of law he continued in the office of Comptroller as a hold over pending the appointment of his successor; and in consideration of the submission of his, he is entitled to recover his accrued sick time, personal time, vacation time and salary, including longevity, through January 2, 2013.

Phillips submitted a motion for summary judgment on his petition to Supreme Court, which the court denied but did grant the Town's motion for summary judgment. Phillips appealed but the Appellate Division affirmed, explaining that with respect to the Town's cross motion for summary judgment, it was Town's burden to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issue of fact.

The Town did so, said the court, by submitting affidavits by the Town Clerk and the Town's Deputy Supervisor.

These affidavits, among other things, recited Phillips' employment history with the Town, indicated that, upon expiration of Phillips' 2008 appointment he was not reappointed as Comptroller and, instead, accepted the position of Acting Comptroller, a position with no fixed term or tenure that serves at the pleasure of the Town Board and the events involving the Town Board's meeting which specifically included an item calling for the Town Board to meet in executive session to discuss a personnel matter.

In particular, the Deputy Supervisor's affidavit stated that "even assuming that [Phillips']  position as Acting Comptroller qualified him to receive a cash payment for unused accrued sick time pursuant to the terms of the collective bargaining agreement between the Civil Service Employees Association and the Town, inasmuch as the Town terminated [his] employment, he was ineligible to receive any such payments.

Based on the foregoing, the Appellate Division ruled that the Town had met its initial summary judgment burden, effectively shifting the burden to Phillips to raise a triable issue of fact.

Considering Phillips' argument that in accordance with Public Officers Law §5, he was entitled, as a matter of law, to continue occupying the office of Comptroller until such time as his successor was chosen and qualified, which he contended did not occur until after he had resigned from office on January 2, 2013 and thus he was entitled to payment for certain accrued benefits the Appellate Division said that it found that argument unavailing.

The court explained that Phillips conceded that he was not reappointed to the office of Comptroller after the expiration of his 2008 reappointment. Accordingly, by operation of law, he no longer held the office of Comptroller and the position was considered vacant for purposes of appointing a successor as of January 1, 2010.

As to Phillips' reliance on his employment status with the Town on and after January 1, 2010, whether as a hold over within the meaning of Public Officers Law §5 or in consideration of the fact that he accepted the Town's offer to continue as Acting Comptroller in a temporary capacity, such employment status was immaterial because, in either case, Phillips' employment status was that of an at-will employee and, as such, he served at the pleasure of the Town Board. Further, observed the Appellate Division, in the absence of any specific limitation on the Town's authority to terminate Phillips, the Town Board was within its discretion to terminate him, as an at-will employee, at its December 2012 meeting. Significantly, the court said that "as a terminated employee, [Phillips] was not eligible to receive an award of any accrued benefits."

Another argument advanced by Phillips was that Town Board's December 12, 2012 determination to terminate plaintiff's employment was rendered null and void based on a violation of the Open Meetings Law. This claim was rejected by the Appellate Division.

The court said even assuming that the Town Board's December 12, 2012 meeting was procedurally defective and violated the Open Meetings Law for failing to sufficiently particularize the subject to be considered during executive session, its actions with respect to Phillips' employment were "not void but, rather, voidable." As there was nothing in the record before the Appellate Division establishing that the Town intentionally violated the Open Meetings Law and, "given that timely notice of the subject meeting was disseminated prior thereto and the undisputed fact that plaintiff was not reappointed to the office of Comptroller and, therefore, served as an at-will employee," we find that, under the circumstances presented, Phillips "failed to demonstrate sufficient good cause to warrant exercising our discretionary authority to invalidate [the Town's] determination terminating [Phillips'] employment."

* §5 further provides that in the event a term of office is truncated by reason of a predecessor holding over, the successor appointee shall serve for "the residue of the term only."

The decision is posted on the Internet at:


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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