A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation

A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation

Reo v Village of Lawrence, 2013 NY Slip Op 02403, Appellate Division, Second Department

Daniel S. Reo was initially employed by the Village of Lawrence in the title Laborer.

According to the decision, in 2007 Reo resigned from this position to accept a position Sewer Plant Attendant with the Village and served in this title until 2009, when he resigned and sought reemployment in his former position, Laborer, with the Village.

As this would be a new Laborer position the Village was required to secure approval of that position from the Nassau County Civil Service Commission pursuant to Civil Service Law §22.*

As a condition of its approval of this new position the Commission asked the Village for its assurance that Reo “would only be performing duties appropriate for the laborer title.” The Village, however, decided to give those assurances to the Commission and terminated Roe’s employment effective January 7, 2011.**

Roe filed a petition pursuant to Article 78 of the CPLR challenging “the validity of his resignations in 2007 and 2009 and sought a court order directing the Village to reinstate him. Supreme Court denied the petition and dismissed the proceeding.

The Appellate Division said that Roe’s challenges to the validity of his resignations*** were barred by the four-month statute of limitations applicable to proceedings pursuant to CPLR Article 78. Further, said the court, “the termination of [Roe’s] employment in the new position of Laborer was not arbitrary and capricious or affected by an error of law."

* CSL §22, in pertinent part, provides that “[b]efore any new position in the service of a civil division shall be created … the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position …. “

** Although the decision is silent regarding Roe’s employment status between 2009 and January 2011, presumably he was appointed to “temporary position” of Laborer pending the Commission’s classification, approval and certification of the new position pursuant to CSL §22.

*** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c),which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_02403.htm

Courts will reject an untimely demand to submit a matter to arbitration

Courts will reject an untimely demand to submit a matter to arbitration

Town of Orangetown v Rockland County Policemen's Benevolent Assn., 2013 NY Slip Op 02408, Appellate Division, Second Department

In this CPLR Article 75 the Town of Orangetown petitioned Supreme Court seeking an order to permanently stay an arbitration demanded by the Rockland County Policemen’s Benevolent Association and the Town of Orangetown Policemen's Benevolent Association.

Both Associations, on the other hand, asked the court to issue an order to “compel arbitration.”

Although the Town contended that demand for arbitration was untimely, Supreme Court granted the Associations’ petition. The Appellate Division, however, revered the lower court’s ruling, vacated the order, and granting the Town’s petition to permanently stay the arbitration.

The Appellate Division explained that under New York statutory and case law, a court may address three threshold questions on a motion to compel or to stay arbitration:

1. Whether the parties made a valid agreement to arbitrate;

2. If so, whether the agreement has been complied with; and

3. Whether the claim sought to be arbitrated would be time-barred if it were asserted in State court.

Finding that the grievance the Association sought to be arbitrated was time-barred under the applicable 18-month statute of limitations, the Appellate Division held that Supreme Court erred in denying the Town’s petition to permanently stay arbitration and granting the Association’s cross motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02408.htm

A board may not appoint one of its own members to a vacant position under it jurisdiction

A board may not appoint one of its own members to a vacant position under it jurisdiction
Fishman v Board of Educ. of S. Country Cent. Sch. Dist, 2013 NY Slip Op 02394, Appellate Division, Second Department

Roberta Fishman filed a CPLR Article 78 petition challenged a resolution of the Board of Education of the South Country Central School District appointing Gregory C. Miglino, Jr. to the position of Building Services Administrator Miglino was a then member of the Board.

Supreme Court’s ruling annulling the Board’s resolution appointing Miglino to the position. In the words of Supreme Court Justice Paul J. Baisley, "… the Court determines and declares that the Board Action in creating the position … and appointing its member and president Gregory C. Miglino, Jr. to the position was arbitrary and capricious … and accordingly is null and void.”

Miglino appealed the decision but the Appellate Division affirmed Justice Baisley's decision. The Appellate Division held that Supreme Court had correctly determined that the action of the Board in appointing one of its present members to the position of Building Services Administrator was “illegal and improper,” citing Wood v Town of Whitehall, 120 Misc 124, affd206 App Div 786.*

In Whitehall the court ruled that a board may not appoint one of its members to a position under its jurisdiction as such an action is contrary to public policy and the general welfare. Further, the Attorney General has indicated that the recusal of the member of the board to be appointed does not remedy the conflict of interests (1995 Informal Opinions of the Attorney General1074).

The Association of Towns has observed that “in the absence of a state law, local law or session law to the contrary,” a board is bound by the Whitehall doctrine.

The Whitehall decision is posted on the Internet at:

* http://decisions.courts.state.ny.us/fcas/fcas_docs/2012FEB/51002913120103SCIV.pdf

The Fishman decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02394.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending April 12, 2013 [Click on text highlighted in bold to access the full report] 

Town of Amsterdam – Supervisor’s Records and Reports (Montgomery County)
The town supervisor does not maintain timely or accurate accounting records for the town. Therefore, the accounting records do not support the AUDs filed in 2010 and 2011. The town board does not receive all the financial information it needs to monitor the town’s financial operations. Additionally, auditors found discrepancies between bank reconciliations and account balances documented in the town’s accounting records.

Village of Cuba – Sewer Fund Financial Condition and Records and Reports (Allegany County)
The village board did not adopt budgets for the sewer fund that provided sufficient revenues to finance expenditures, because revenues were consistently overestimated. Auditors also found that the clerk-treasurer did not maintain the village’s accounting records in a complete and accurate manner. Specifically, cash, accounts receivable and accounts payable were misstated, which resulted in the operating funds’ fiscal health appearing to be more favorable.

Village of Dannemora – Internal Controls Over Cash Receipts (Clinton County)
The village has informal procedures over the collection of cash receipts for water and sewer rents and property taxes.  The clerk-treasurer prepares billings, enters receipts into the accounting system, reconciles customer accounts, prepares bank deposits and reconciles bank statements without any additional verification or assistance.

Village of Delanson – Internal Controls Over Selected Financial Operations (Schenectady County)
The village clerk and treasurer both perform incompatible cash disbursement duties and compensating controls have not been established. The village board does not require claims to be adequately documented or appropriately audit and approve all claims. Also, the clerk did not collect all interest and penalties due on overdue real property tax and water rent payments or properly record and report to the county unpaid water rents for re-levy.

Downtown Ithaca Business Improvement District – Disbursements (Tompkins County)
The Executive Director did not ensure that disbursements were for proper DIBID purposes. Although the claims reviewed by auditors appeared to be for reasonable DIBID expenditures, without proper supporting documentation such as receipts, invoices, or bills attached to the claims, taxpayers do not have any assurance that these monies were used for valid DIBID purposes.

Village of Hoosick Falls – Internal Controls Over Selected Operations (Rensselaer County)
The village board has not adopted policies establishing responsibilities and duties for handling cash and maintaining accounting records. As a result, the treasurer has filed the village’s annual financial report an average of 221 days past the due date from 2008 through 2011. Further, the board has not implemented compensating controls to address the lack of segregation of duties performed by the treasurer.

Village of Nelsonville – Financial Operations (Putnam County)
The village board did not develop policies and procedures for the clerk-treasurer to follow when performing cash receipts and disbursement duties and did not audit the clerk-treasurer’s financial records. Further, the board did not ensure bank reconciliations were performed or that the village payroll was properly certified.

Town of Schroon – Internal Controls Over Transfer Station Operations (Essex County)
The town does not reconcile the amount of money collected with the amount of trash disposed at the transfer station. Auditors found that over a three-month period in 2012, the weight of the solid waste the town paid to dispose of at the county landfill exceeded the amount of trash accounted for as being received at the transfer station, resulting in approximately $10,000 in missing revenues. Auditors also found weak internal controls over cash receipts and poor monitoring of solid waste received at the transfer station.

Village of Victory – Audit Follow Up (Saratoga County)
Auditors found that the village has made limited progress in implementing our recommendations. Of the eight audit recommendations, two recommendations were implemented, four recommendations were partially implemented and two recommendations were not implemented.

Helping Students Get Course Credit: Credit Recovery Programs in School Districts (2012MS-8)
Auditors found that all eight school districts reviewed provided evidence to show, to the State Education Department’s (SED) satisfaction, that Credit Recovery Programs (CRPs) aligned with state learning standards. SED’s current measure of satisfactory alignment, however, is very easy to meet. More explicit expectations for demonstrating alignment with current standards would provide better assurance that online CRPs provide intensive instruction in a subject that is equivalent to teacher-provided classroom instruction.

Fabius-Pompey Central School District – Budget Review (Onondaga County)
Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. The school district’s proposed budget currently includes a tax levy that is over the statutory limit by $58,246.

North Colonie Central School District – Claims Processing (Albany County)
The school board adopted claims processing policies which require all claims to be audited prior to payment except for certain allowed exceptions. District policy requires the claims auditor to ensure that all claims are properly authorized, itemized, supported and that goods and services have been received in the amount and price as ordered prior to payment.

The State Energy Highway: What’s Ahead For The State, Consumers and Industry

On April 23rd, 2013,  as a part of the Warren M. Anderson Legislative Breakfast Seminar Series, the Albany Law School’s Government Law Center will host a program entitled, “The State Energy Highway: What’s Ahead For The State, Consumers and Industry?”

The panel discussion will include the major stakeholders of the newly designed State Energy Highway.  Representatives from the New York Power Authority, Independent Power Producers of New York, Inc., and the Alliance for Clean Energy New York, Inc., will discuss energy grid improvements, impacts on utility companies and consumers, and the Highway’s ability to foster renewable forms of energy in New York.

The program will take place from 8:00am to 9:00am in the Assembly Parlor Room in the New York State Capitol Building. It is free, open to the public.

The seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”  


Space is limited, Please contact the GLC at 518-445-2329 or jmont@albanylaw.edu to register or for more information.