The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Moser v Tawil, 2016 NY Slip Op 00501, Appellate Division, Second Department

Robert T. Moser was employed by the City of Middletown as a part-time code enforcement officer. On April 27, 2012, the Mayor of Middletown unilaterally decided to abolish that position for economic reasons. Moser filed a CPLR Article 78 petition seeking a court order annulling the Mayor’s decision that resulted in his termination and directing his reinstatement to his former position with back salary.

Following a hearing, Supreme Court determined that the Mayor had exceeded his authority under the Middletown City Charter and granted Moser’s petition.

The Appellate Division commenced its review of Mayor’s appeal by noting that “The questions that may be raised in a CPLR Article 78 proceeding include "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

Finding that Supreme Court correctly concluded that the Mayor did not have the authority to unilaterally abolish the position of part-time code enforcement officer, the Appellate Division explained that the City Charter “grants the Middletown Board of Estimate and Apportionment the power to create civil service positions in Middletown by providing that it "shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees."

While the City Charter authorizes the Mayor, with certain limitations, to suspend an employee for cause, there is nothing in the City Charter granting the Mayor authority to unilaterally abolish civil service employment positions.

Sometimes referred as the Doctrine of Legislative Equivalency, the court said that the general rule, when not qualified by positive law, is that the power which creates an office may abolish it in its discretion and this rule applies to municipal offices created by the act of some municipal body. Accordingly, “having been granted the power to create civil service employment positions in Middletown, it is the Board of Estimate and Apportionment, and not the Mayor, that is vested with the power to abolish them.”

The Doctrine of Legislative Equivalency, applied by the Court of Appeals in deciding the Torre v County of Nassau, 86 NY2d 421, sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00501.htm

In the event there is a conflict between a provision in the County Code and the County Charter, the provision in the County Charter controls

In the event there is a conflict between a provision in the County Code and the County Charter, the provision in the County Charter controls

James Carver v County of Nassau, 2016 NY Slip Op 00466, Appellate Division, Second Department

[See, also, James Carver v County of Nassau, 2016 NY Slip Op 00467, Appellate Division, Second Department]

Prior to 2007, the Nassau County Charter and the Nassau County Administrative Code both provided that the Commissioner of Police had control over the discipline of members of the Nassau County Police Department. In 2007, the Nassau County Legislature amended §8-13.0 of the County Administrative Code by adding subdivision (e), which amendment allowed for the resolution of certain disciplinary matters through binding arbitration.

In 2008, the Police Benevolent Association of the Police Department of the County of Nassau, N.Y., Inc. [PBA] and the County of Nassau entered into a collective bargaining agreement that, in pertinent part, provided that police officers “subject to a fine, penalty, or suspension of 10 or more days without pay, or its monetary equivalent,” had the option of proceeding to binding arbitration in lieu of a departmental disciplinary hearing. 

In 2012, the County Legislature enacted Local Law No. 9-2012 of the County of Nassau, repealing §8-13.0(e) of the County Administrative Code.

PBA challenged this action by the County Legislature seeking a court order declaring that the 2008 agreement was valid and was not altered by Local Law No. 9-2012. In addition, PBA alleged Local Law No. 9-2012, repealing §8-13.0(e) of the County Administrative Code, “did not impact the parties' contractual obligations pursuant to the 2008 agreement and, therefore, [PBA is] entitled to a permanent injunction enjoining the enforcement of Local Law No. 9-2012 of the County of Nassau.”

Supreme Court ruled that as the County Charter vested the power to discipline members of the Nassau County Police Department exclusively with the Commissioner of Police, the County Legislature's attempt to divest the Commissioner of a portion of that disciplinary authority by amending the County Administrative Code to allow for binding arbitration of certain disciplinary matters created a conflict between the Code and the Charter, and, in the face of such a conflict, the Charter controlled.

The Appellate Division agreed, holding that Supreme Court “properly concluded that the County Legislature's enactment of §8-13.0(e) of the Nassau County Administrative Code was invalid and that the subsequent repeal of §8-13.0(e) of the County Administrative Code by Local Law No. 9-2012 of the County of Nassau was proper and should not be enjoined.”

Citing Patrolmen’s Benevolent Association of the City of New York v PERB, 6 NY3d 563 and Town of Wallkill v CSEA, Town of Wallkill Police Department Unit, 19 NY3d 1066, the court said “as the [Nassau] County Legislature expressly committed disciplinary authority over the Nassau County Police Department to the Commissioner of Police, collective bargaining over disciplinary matters was prohibited.”

In the Patrolmen’s case, the Patrolmen's Benevolent Association of the City of New York (NYCPBA) sought to annul a decision by the Public Employment Relations Board (PERB) that the City need not bargain with the PBA over five subjects, even though those subjects had been dealt with in an expired collective bargaining agreement. The Court of Appeals sustained PERB’s ruling, explaining “that the New York City Charter and Administrative Code, as interpreted in Matter of City of New York v MacDonald (201 AD2d 258, 259 [1st Dept 1994]), required that the discipline of New York City police officers be left to the discretion of the Police Commissioner.”

In Wallkill, the Court of Appeals ruled that although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

The Court explained that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Noting that Civil Service Law §76(4) states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws,” the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155" and that police discipline “is a prohibited subject of collective bargaining between the Town and the PBA.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00466.htm

The Kyung Hee University [KHU] Library in Seoul Korea is posting NYPPL items.

The Kyung Hee University [KHU] Library in Seoul, Korea is posting NYPPL items. 

The Kyung Hee University [KHU] Library in Seoul, Korea is including postings from New York Public Personnel Law in its Serials Collection. It reports that it has posted 7679 items from this LawBlog to date.

Below is an example of a recent KHU Library post:

New York Public Personnel Law: Police confrontations with mentally impaired citizens and inmates

저널명:

New York Public Personnel Law [Public Employment Law Press - BLOG]

발행일:

2016/01/28

본 자료는 도서관에서 구독하고 있지 않는 자료입니다. 페이지 아래에 표시되어 있는 옵션(ISSN 검색 KHU Library , 서명 검색 KHU Libray)을 통해 인쇄본 구독 여부를 확인 하시거나 또는 타도서관 자료복사 서비스를 이용하시기 바랍니다. 오른쪽에 FRIC배너가 보이시는 자료는 RISS에서 제공하는 복사서비스 링크를 클릭하셔서 신청하실 수 있습니다. 이 밖에 추가 문의가 있으시다면, 오른쪽 상단에 '도서관에 도움 요청' 을 클릭하셔서 직원에게 해당내용을 전달해 주시기 바랍니다. 최대한 빠르게 답변을 드리도록 하겠습니다. 감사합니다.^^

ISSN 검색 KHU Library

서명 검색 KHU Library

타도서관 자료복사

For those NYPPL readers who may prefer to read this LawBlog in Korean, the URL is
http://khis.khu.ac.kr

The Kyung Hee University [KHU] Library in Seoul Korea is posting NYPPL items.

The Kyung Hee University [KHU] Library in Seoul, Korea is posting NYPPL items. 

The Kyung Hee University [KHU] Library in Seoul, Korea is including postings from New York Public Personnel Law in its Serials Collection. It reports that it has posted 7679 items from this LawBlog to date.

Below is an example of a recent KHU Library post:

New York Public Personnel Law: Police confrontations with mentally impaired citizens and inmates

저널명:

New York Public Personnel Law [Public Employment Law Press - BLOG]

발행일:

2016/01/28

본 자료는 도서관에서 구독하고 있지 않는 자료입니다. 페이지 아래에 표시되어 있는 옵션(ISSN 검색 KHU Library , 서명 검색 KHU Libray)을 통해 인쇄본 구독 여부를 확인 하시거나 또는 타도서관 자료복사 서비스를 이용하시기 바랍니다. 오른쪽에 FRIC배너가 보이시는 자료는 RISS에서 제공하는 복사서비스 링크를 클릭하셔서 신청하실 수 있습니다. 이 밖에 추가 문의가 있으시다면, 오른쪽 상단에 '도서관에 도움 요청' 을 클릭하셔서 직원에게 해당내용을 전달해 주시기 바랍니다. 최대한 빠르게 답변을 드리도록 하겠습니다. 감사합니다.^^

For those NYPPL readers who may prefer to read this LawBlog in Korean, the URL is
http://khis.khu.ac.kr

Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016

Click on text highlighted in color to access the full report

Former Monroe County Chief Information Officer enters guilty plea in bid-rigging case
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Nelson Rivera, the former Chief Information Officer for Monroe County, for working with others to rig the bidding process for multi-million dollar public works contracts in Monroe County. Rivera entered a guilty plea before The Honorable Dennis M. Kehoe in Monroe County Court to two counts of the class “E” felony charge of Combination in Restraint of Trade and Competition in violation of General Business Law §§ 340 and 341, also known as New York State’s Donnelly Act. Based on what was stated on the record in court proceedings, it is expected that Rivera will be sentenced to five years of probation, may never again serve as a New York public employee, must pay a $25,000 fine, and will give up his government pension.

http://www.osc.state.ny.us/press/releases/feb16/020316a.htm?utm_source=weeklynews20160207&utm_medium=email&utm_campaign=020316arelease

Florida resident to make full restitution after stealing $274,920.16 in New York State pension funds
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, was sentenced in Albany County Court to five months in jail, $200,000 in restitution and signed a confession of judgment in the amount of $74,920.16 for stealing $274,920.16 in New York state pension benefits. Eletz previously pleaded guilty to the crime of Grand Larceny in the Third Degree, a class D felony, in September 2015.

http://www.osc.state.ny.us/press/releases/feb16/020416.htm?utm_source=weeklynews20160207&utm_medium=email&utm_campaign=020416release

State Audits published

Metropolitan Transportation Authority - Bus Driver Licensing

Metropolitan Transportation Authority Metro-North Railroad - Payments to On-Board Service Managers

Office of Court Administration - Reporting on Foreclosure of Real Property Funds – Kings County

Municipal Audits published

Town of Ausable - Water and Sewer District Financial Operations

Fishers Island Waste Management District – Purchasing

Town of Guilderland – Employee Compensation and Benefits

Plattsburgh Housing Authority – Tenant Rents

Town of Salem – Financial Management

Westbury Water District - Purchasing


School Audits published

East Islip Union Free School District – Financial Condition

Elizabethtown-Lewis Central School District – Claims Processing

George Junior Republic Union Free School District – Tuition Billing

Otsego Northern Catskills Board of Cooperative Educational Services – Extra Classroom Activity Fund