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September 07, 2010

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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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here:

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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.

September 06, 2010

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September 03, 2010

NYS Common Retirement Fund employer contribution rates to increase in 2012

NYS Common Retirement Fund employer contribution rates to increase in 2012
Source: Office of the State Comptroller

On September 2, 2010 State Comptroller Thomas P. DiNapoli announced increases over the previous year in the 2011-12 employer contribution rates for the New York State Common Retirement Fund. At the same time DiNapoli announced that he accepted the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates.*

The average contribution rate for the Employee Retirement System will increase from 11.9 percent of salaries to 16.3 percent. The average contribution for the Police and Fire Retirement System is increasing from 18.2 percent 21.6 percent.

Comptroller DiNapoli commented that “Unfortunately, it takes the economy a lot longer to climb out of a hole than it takes to fall in it. The markets are still recovering from the 2008-09 financial meltdown, and that recovery continues to be volatile. We handled the meltdown better than most pension funds, but we’re still feeling the impact, and, as I have consistently cautioned, the employer contribution rates I’m announcing today will reflect the impact of the financial crisis.”

The Retirement System actuary by law reviews many actuarial assumptions for the Retirement System, including: the mortality rate for members and retirees, the expected investment rate of return on pension fund investments, the rate of inflation and anticipated salary scales. The actuary prepares a report with recommendations, which is presented to an independent actuarial advisory committee.

The Retirement System’s new assumption for its investment rate of return is more fiscally conservative than the national average for public pension funds and more conservative than the average for the top 100 private U.S. pension funds, according to Milliman’s 10th annual Pension Funding Study.

The Comptroller noted that a new law was enacted earlier in 2010 that will allow a political subdivision of the State to elect to participate in a program that would allow it to budget a portion of their increased pension fund payments over ten years.**

This “employer contribution payment plan” will help those localities electing to participate to mitigate the impact the increase in costs could have on local taxpayers. Those localities opting into the plan must also build reserve accounts during periods of decreasing pension contribution rates, which reserve accounts would be used to protect taxpayers from future rate spikes.

DiNapoli characterized the program as being similar to a household utility budget plan that enables homeowners to pay one level payment throughout the year rather than payments that spike at different times of the year.

* Click on "contribution rates" for the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates: contribution rates

** See Retirement and Social Security Law §19-a, Employer contributions for the two thousand ten - two thousand eleven fiscal year and subsequent fiscal years.


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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger 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 NYPPL and, or, its staff and contributors 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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