The legal distinction between domicile and residence

The legal distinction between domicile and residence
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033

Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."

In the words of the Appellate Court of Illinois, First Division:

As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).

This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.

Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.

Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.”

The term “domicile,” states the statute, “has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, the place to which he intends to return whenever he is absent. It is the place in which an individual has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.

Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:

1. Another definition of "domicile" consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.

2. An individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.

3. Thus, if an individual, who has acquired a domicile in California, for example, comes to Illinois for a rest or vacation or on business or for some other purpose, but intends either to return to California or to go elsewhere as soon as his purpose in Illinois is achieved, he retains his domicile in California and does not acquire a domicile in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state retains his Illinois domicile as long as he has the definite intention of returning to Illinois.

4. On the other hand, an individual, domiciled in California, who comes to Illinois with the intention of remaining indefinitely and with no fixed intention of returning to California loses his California domicile and acquires an Illinois domicile the moment he enters the state. Similarly, an individual domiciled in Illinois loses his Illinois domicile: 1) by locating elsewhere with the intention of establishing the new location as his domicile, and 2) by abandoning any intention of returning to Illinois.”

A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*

In Longwood the court said that:

On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.

Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "

The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

An early decision by the Illinois State Supreme Court is expected.

The Maksym decision by the Illinois Appellate Court is posted on the Internet at:
http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/January/1110033.pdf

* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm

Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained

Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained
Matter of Rodriguez v County of Nassau, 2011 NY Slip Op 00384, Appellate Division, Second Department

The Nassau County Civil Service Commission wrote to Sebastian E. Rodriguez a candidate for appointment as a Nassau County Correction Officer, advising him that he had been "disqualified for . . . failure to cooperate with [his] background investigation." The Commission also told Rodriguez that he had the right to "make explanation and to submit facts in opposition to such disqualification."*

The Commission’s action followed Rodriguez’s failing to contact the Nassau County Police Department after he was told that the Department was investigating his character and background to determine his eligibility for the position of Correction Officer.

Rodriguez was told to call the Department to receive further information and schedule an appointment. The letter also stated “If you fail to contact [the Correction Department’s official] by May 5, 2008, your application may be discontinued." In addition, a Department official left four voice messages on Rodriguez’s cell telephone’s voicemail in an attempt to contact him.

Rodriguez responded to the Commission’s letter claiming that [1] he never received the Department’s letter and [2] that because he did not regularly use his cellular telephone, he was unaware of the voice messages until the week of June 2, 2008. The Commission, after reviewing the matter, advised Rodriguez that it had decided to uphold the original disqualification notification.

Rodriguez filed a petition pursuant to CPLR Article 78 arguing that the Commission’s decision to disqualify him as a candidate for appointment as a correction officer was "arbitrary and capricious and without just cause or good sound reason."

The Supreme Court granted Rodriguez’s petition, explaining that there was no "rational reason" why the Nassau County Police Department did not attempt to contact Rodriguez either through his previously provided home or work telephone numbers, and that the County officials had failed to explain how the his delay "adversely affected the application process."

The Appellate Division reversed the Supreme Court’s decision, explaining that "[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious.”

Further, said the Appellate Division, “the Commission's determination to disqualify [Rodriguez] based upon [his] failure to timely schedule the background interview was neither irrational nor arbitrary.”

* §50.4 of the Civil Service Law sets out the reasons for which the state civil service department or a municipal commission may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position being sought, and the due process procedures available to the disappointed applicant wishing to object to the department's or a municipal commission's determination.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00384.htm

Employee’s being on medical leave and continuing to receive employee benefits defeats the employee’s claim of constructive termination

Employee’s being on medical leave and continuing to receive employee benefits defeats the employee’s claim of constructive termination
Keehle v Diocese of Syracuse, 2011 NY Slip Op 00145, Appellate Division, Third Department

Minnie Keehle was employed by the Diocese of Syracuse and assigned to teach at a school in St. Joseph's Parish in the Village of Endicott, Broome County.

Claiming that the school principal made her working conditions so intolerable that she could no longer teach and was forced to give up her position, Keehle sued the Diocese for “breach of contract," contending that the school principal made it impossible for her to "continue her employment,” and she had been "effectively terminated."

The Diocese, in rebuttal, argued that Keehle was still its employee and that she had neither resigned nor been terminated.

Supreme Court granted the Diocese’s motion dismissing Keehle’s petition and the Appellate Division affirmed the lower court’s decision.

The Appellate Division said that accepting all of Keehle’s allegations as true and gibing her the benefit of “every possible favorable inference” Keehle failed to demonstrate that she was constructively discharged from her position because of the conditions that existed in the work place.

The court said that the evidence introduced by the Diocese demonstrated that Keehle had not resigned from her position and it had not terminated her. Rather, said the Appellate Division, Keehle continued to receive employee benefits, including disability and sick pay, as well as health insurance and the record “conclusively established” that she was still in the employ of the Diocese of Syracuse. “albeit on medical leave.”

Accordingly, the Appellate Division said that Keehle’s complaint was properly dismissed by Supreme Court.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00145.htm

Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2

Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2
MacRae v Dolce, 273 AD2d 389; motion for leave to appeal denied: 95 NY2d 765

Duncan MacRae, in his capacity as president of the City of White Plains firefighters union, challenged the Fire Department’s policy of routinely ... assigning ... fire fighters to perform the duties of an ‘Officer/Designated Fire Fighter’ as described in the [Fire Department’s] Manpower Accountability Standard Operating Procedure [MASOP] as constituting out-of-title work.

Essentially, MacRae complained that the City of White Plains was assigning its firefighters to perform the duties of a Fire Lieutenant in non-emergency situations.

A State Supreme Court justice dismissed complaint, ruling that the department’s policy was proper and does not violate Article V, Section of the New York Constitution or Section 61.2 of the Civil Service Law. The ruling did not pass muster when the Appellate Division considered MacRae’s appeal.*

The Appellate Division reversed the lower court’s ruling and barred White Plains from routinely assigning its firefighters to perform the duties of fire lieutenant on a non-emergency basis.... The Appellate Division, agreeing with MacRae, held that the City’s policy of routinely assigning firefighters to perform the duties of fire lieutenant on a non-emergency basis violates Civil Service Law Section 61.2.

The court said that the policy provided for the routine, non-emergency imposition upon firefighters of supervisory duties not in their job description and required firefighters to routinely perform supervisory functions clearly within the ambit of the job description applicable to fire lieutenants.**

The court rejected the department’s argument that the MASOP merely codified a long-standing practice of requiring motor and pump operators to perform certain of the duties of fire lieutenants, commenting that the routine temporary assignments improperly harden to a pattern for permanently filling the positions of fire lieutenant.

* Section 61.2 provides as follows: Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

** In contrast, the designation of an individual to serve as the “temporary supervisor” when the supervisor is temporarily absent when on vacation or ill is not considered “out-of-title” work within the meaning of Section 61.2.

Petitioner has the burden of proving that his or her probationary termination was made in bad faith

Petitioner has the burden of proving that his or her probationary termination was made in bad faith
Negron v Jackson, 273 AD2d 241

The New York State Department of Motor Vehicles terminated Pedro Negron during his probationary period. Negro objected but his appeal was rejected by the Appellate Division, Second Department.

The court pointed out that A probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a showing that the termination was for a constitutionally impermissible purpose, made in bad faith, or in violation of statutory or decisional law, citing Iannuzzi v Town of Brookhaven, 258 AD2d 651.

Further, the discharged employee has the burden of demonstrating bad faith by competent evidence, not speculation. This, apparently, was the defect in Negron’s appeal. The court said that his petition failed to allege facts that supported his conclusory claim of discrimination or to otherwise demonstrate bad faith. Ruling that this constituted a fatal defect, the court said that his petition was properly dismissed by the lower court.

Ability to perform “light duty” defeats accidental disability retirement claim

Ability to perform “light duty” defeats accidental disability retirement claim
Matter of Roache v Hevesi, 38 AD3d 1036

Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.

Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.

Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.

The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.

The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."

Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits

Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits
Retirement and Social Security Law §73.b

Considering the various statements suggesting a potential for a significant number of State an municipal employees being laid off appearing in the press, it may be timely to consider the benefits available to members of the New York State Employees' Retirement System pursuant to §73.b of the Retirement and Social Security Law.

This section, captioned “Discontinued Service,” authorizes certain retirement benefits for individuals who became members of the New York State Employees’ Retirement System on or after April 8, 1943* who are laid off if they have 20 or more years of service.

§73.b, in pertinent part, provides that:

“1. A person who last became a member on or after April eighth, nineteen hundred forty-three, and who is discontinued from service while a member, through no fault or delinquency on his [or her] part, may elect to receive his [or her] accumulated contributions or a retirement allowance pursuant to the provisions of paragraph two of this subdivision b if:

“(a) He [or she] shall have completed twenty years of total service, and

“(b) During the six months immediately preceding such discontinuance, he [or she] shall have been in paid service continuously, regularly and without interruption.”**

The benefits payable to those eligible and electing to retire upon being laid off are set out in the statute as follows:

2. A retirement allowance granted pursuant to the provisions of this subdivision b shall consist of:

(a) An annuity of equivalent actuarial value to the member's accumulated contributions, and

(b) A pension which is the actuarial equivalent of the reserve-for-increased-take-home-pay to which he may be entitled, if any, and

(c) A pension, to begin immediately, which shall be composed of one or more of the following parts:

(1) One which is the actuarial equivalent, at his age at the time of such discontinuance, of a pension, beginning at age sixty, of one-seventieth of his final average salary multiplied by the number of years for which he has prior service credit and credit for service in war after world war I, if any, plus

(2) One which is the actuarial equivalent, at his age at the time of such discontinuance, of one-one hundred fortieth of his final average salary multiplied by the number of years for which he has member service credit, plus

(3) If the member shall have attained age fifty, one which equals fifty per centum of the difference between the pension payable to him pursuant to items one and two of this subparagraph (c) and the pension that would be allowable to him were he age sixty.

3. Application shall be made for a discontinued service retirement allowance pursuant to this subdivision b in the same manner and subject to the same conditions, which govern applications and elections for superannuation retirement allowances.

* Section 73.1.a. applies to individuals who last became members of the Retirement System before April 8, 1943.

** N.B. §73.b provides that “The provisions of subparagraph (b) of this paragraph one shall not apply to legislative employees or laborers who have served as such for at least parts of each of the two years immediately preceding such discontinuance.”

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For additional information concerning Layoff, Preferred Lists and Reinstatement, click on http://nylayoff.blogspot.com/

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Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected

Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected
Michael P. Thomas and the New York City Department of Education, Decision No. 16,193

Michael P. Thomas, a tenured teacher employed by the New York City Department of Education, objected to the placement of certain documents in his personnel file.

Noting that an appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown, the Commissioner noted that Cardozo had commenced his appeal more than six months after the date of the most recent document he objected to having been placed in his personnel file.

Conceding that his appeal was not filed in a timely manner, Thomas argued that the placement of these letters and documents in his personnel file constitutes a continuing wrong.

The Commissioner rejected Thomas’ theory, noting that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual, unlawful appointments to a district’s shared decision-making team, an improperly constituted professional development team, certain expenditures under an austerity budget that did not comply with the law.

In contrast, the Commissioner said that the doctrine did apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful.

Although the parties disagreed as to the nature of each letter and document, the Commissioner ruled that placement of letters and grievance documents in a personnel file is not an inherently unlawful action, ruling that the continuing wrong doctrine does not apply and dismissed Thomas’ appeal as untimely.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16193.htm

Providing legal representation to public officers and employees being sued

Providing legal representation to public officers and employees being sued
Vitucci v City of New York, 272 AD2d 620

A New York City employee, Jacqueline Vitucci, was named as a defendant in a federal lawsuit. He asked Corporation Counsel to defend him in accordance with Section 50-k of the General Municipal Law.

Like similar representation provisions, Section 50-k(2) requires the Corporation Counsel to defend municipal employees in civil actions which the corporation counsel finds occurred while the employee was acting within the scope of his [or her] public employment and in the discharge of his duties and was not in violation of any rule or regulation of his [or her] agency at the time the alleged act or omission occurred.

When Vitucci’s request was denied, he filed a petition seeking a court order requiring the Corporation Counsel to defend him. The Appellate Division sustained a lower court ruling dismissing his petition.

The court’s rationale: Whether an employee was acting within the scope of his or her employment and is entitled to legal representation must be determined in the first instance by the Corporation Counsel, whose determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious.

The court said that the report prepared by the Special Commissioner for Investigation for the New York City School District provided the Corporation Counsel with a sufficient factual basis to determine that the acts allegedly committed by Vitucci were not within the scope of his employment.

Retirees claim they were mislead by union concerning accepting a retirement incentive

Retirees claim they were mislead by union concerning accepting a retirement incentive
Dolce v Bayport-Blue Point UFSD, 286 AD2d 316

A number of school districts have negotiated retirement incentive provisions in the course of collective bargaining. Sometimes hindsight causes an individual to regret his or her decision to accept or reject the opportunity. The Dolce case concerns a number of teachers who had accepted a retirement incentive only to later regret their decision.

Essentially the retired teachers complained they were misled by their union when they decided to accept the incentive and retire.

According to the decision, Bayport-Blue Point Union Free School District and the teachers’ union negotiated a retirement incentive providing for a one-time payment of $34,000 to eligible teachers who retired by a specified date. Teachers electing the incentive were required to submit irrevocable resignations on or before April 28, 1997.

Dolce alleged that a number of teachers decided to take advantage of the incentive and retire because the Union’s chief negotiator advised them that this was the best offer they would get and that it would never be offered again.

As things turned out, the chief negotiator may have been somewhat pessimistic. In December 1998, the district and the union negotiated a second retirement incentive that provided for the same one-time payment to teachers who elected to retire by June 30, 1999. The second agreement specifically provided that it would not apply to teachers who had previously submitted their resignations.

Dolce and the other teachers sued, complaining that they lost substantial salary and pension benefits in reliance upon the Union’s representation that the 1997 one-time retirement incentive would not be offered again. They also objected to the district’s refusal to allow them to rescind or recant their resignations in order to take advantage of the second retirement incentive. Justice Emerson dismissed the petition, holding that it was untimely.

State Supreme Court Justice Emerson said that while Dolce’s petition concerning the union is based on allegations of breach of contract and fraud, Dolce’s remedy against the Union is an action for breach of the duty of fair representation.

The Appellate Division agreed, holding that:

Supreme Court correctly determined that the plaintiffs' claims against the Teachers' Association were time-barred, citing Bitterman v Herricks Teachers' Association, 220 AD2d 473. Further, as the claims against the superintendent of schools and other school officials, such claims are “inextricably intertwined with the claims against the Teachers' Association for breach of duty of fair representation.” Accordingly, said the court, they are governed by the four-month Statute of Limitations in CPLR 217 (2) (b), and thus, they are also time-barred [with respect to suing the district officials].

Another critical element in pursuing this lawsuit: Dolce had neglected to file a timely notice of claim as mandated by Section 3813(l) of the Education Law, a condition precedent to suing a school district concerning a “personal matter.”