Removing a public officer of a town from his or her position

Removing a public officer of a town from his or her position
Public Officers Law Section 36

Unhappy with their Town Supervisor, a number of residents of a town wrote to New York Governor David Paterson and asked him to remove the official from office.

According to a newspaper report,* Governor Paterson’s attorney, Peter J. Kiernan, Esq., advised the residents that “state law only provides the governor with power to remove some town officials, and town supervisors aren’t on the list.”

In any event, with respect to the removal of a town officer from his or her public office, §36 of the Public Officers Law, in pertinent part, provides as follows:

Any town… officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town … or by the district attorney of the county in which such town … is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town …. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.

* Schenectady Gazette, Saturday, September 4, 2010

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Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions

Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions
Pearce v Clinton Community College, 246 A.D.2d 775

New York State is an “employment-at-will” state. This means that unless there is some statutory or contractual right to due process, an employee may be terminated without notice and a hearing.

However, sometimes courts will deem the contents of an employer’s policy manual or personnel handbook a “contract” insofar as processing the termination of an employee is concerned. Lisa J. Pearce attempted to persuade the Appellate Division that the Clinton County Community College’s [CCC] Policy and Procedures Manual [Manual] was part of the employment contract between her and CCC following her termination by the College.

Pearce signed a letter appointing her assistant bursar at CCC for the period October 18, 1995 through August 31, 1996. According to the ruling, this position was “within the category of management confidential personnel.” Aside from some details concerning fringe benefits, Pearce’s letter of appointment did not include any statements concerning any other “terms and conditions of employment.”

About four months later CCC terminated Pearce. Pearce was awarded unemployment insurance benefits based on a finding by Workers’ Compensation that she “was discharged for incompetence and failure to meet the standards of her payroll specialist position.”

Subsequently Pearce sued CCC, contending that it had wrongfully terminated her and that it had “breached her contract” with respect to certain provisions in the Manual. Was the Manual part of Pearce’s contract of employment? The Appellate Division decided that it was not part of any contract of employment between the parties.

Further, while the Manual indicated that CCC “generally endorses progressive discipline” and provides that “management confidential personnel” may receive annual performance reviews, the Court commented that there was nothing in the Manual setting out a policy with respect to a termination for cause prior to the completion of a specified term of employment.

The Court decided that: (1) The letter of appointment was sufficiently specific to constitute a contract between the parties; (2) CCC’s Policy and Procedures Manual was not “engrafted upon this contract;” and (3) “it is only where a plaintiff can show the existence of an express written agreement limiting the employer’s right to summarily terminate an employee that the principles governing employment at will are inapplicable”. Accordingly, the Court sustained the Supreme Court’s order denying her motion for partial summary judgment.

Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law

Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law
Mueller v Thompson, CA7, 133 F.3d 1063

In Seminole Tribe v Florida, 517 US 44, the U.S. Supreme Court held that Congress did not have the power to void a state’s Eleventh Amendment immunity from suit in the federal courts by enacting legislation pursuant to the Commerce Clause.

In its ruling, the 7th Circuit pointed out that the Supreme Court said states were immune from FLSA under the Tenth Amendment [National League of Cities v Usery, 427 US 909] only to overrule that decision in Garcia v San Antonio Metropolitan Transit Authority [469 US 528]. However, in Garcia the Supreme Court said the FLSA applied to the states with respect to their performing “non-traditional” governmental functions, here a public transportation system.

If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, has it lost its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA? This was the question presented to the U.S. Circuit Court of Appeals, 7th Circuit, by the Mueller case.

The Court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.”

In 1971 Wisconsin copied the federal FLSA and made it part of its state law. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions.

On this legislative history, said the Court, there is “little reason” to concluded that Wisconsin waived its immunity by adopting a state FLSA applicable to public employees as Congress had not yet authorized suing states in federal court for alleged violations of the FLSA.

New York State, in contrast, adopted overtime provisions for state workers in an effort to comply with the overtime mandates of the FLSA after Congress made the FLSA applicable to the states. Accordingly, it could be argued that New York State, as an employer, “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court.