Only a resident of the town may be appointed to serve in a public office of the town

Only a resident of the town may be appointed to serve in a public office of the town
Matter of Ricket v Mahan, 2011 NY Slip Op 02520, Appellate Division, Third Department

After the Town Board of the Town of Colonie passed two resolutions — one appointing John H. Cunningham to a two-year term as Commissioner of Public Works and another appointing Michael M. Burick to a six-year term as Personnel Officer, Theodore W. Ricket, a resident of the Town of Colonie, commenced an Article 78 proceeding challenging both appointments.

Ricket contended that Cunningham's appointment was invalid because he did not reside in the Town, nor did he possess the qualifications established for this position by the Town in its local law.*

As to Burick's appointment as Personnel Officer, Ricket complained that the appointment was invalid because, under the Town Law, as the Town Board was only authorized to appoint him for the remainder of his predecessor's unexpired term.

Supreme Court dismissed Ricket’s petition with respect to Cunningham but determined that Burick could only be appointed by the Town Board for the unexpired portion of his predecessor's term, and so modified his appointment to this position.

Both the Town and Ricket, respectively, appealed the Supreme Court’s rulings.

By way of background, the Appellate Division noted that after the Town had abolished the Office of Superintendent of Highways — an elected position that could only be held by a Town resident — it enacted a local law creating the position of Commissioner of Public Works - Town of Colonie Code §34 This local law, among other things, provided for “an appointed position with a definite term, and set forth a description of the position's official responsibilities and the qualifications needed to be appointed to this position.” However, the local law was silent as to whether the appointee had to be a Town resident.

Since the local law is silent as to whether the Commissioner of Public Works must be a Town resident, the Appellate Division ruled that the issue presented is whether state law serves to impose such a requirement. First, noted the court, the Town, when it enacted this local law, made no reference to any state statute, nor did it identify in the local law any state statute that it intended to supercede.

In this context, the Appellate Division noted that two state statutes are implicated by this proceeding.

1. The Public Officers Law §3(1), provides that "[n]o person shall be capable of holding a civil office who shall not, at the time he [or she] shall be chosen thereto, . . . be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he [or she] shall be chosen, or within which the electors electing him [or her] reside" (emphasis by the court);** and

2. The Town Law §23(1), states that all "elective officer[s] of the town" and "[e]very other officer of the town at the time of his [or her] appointment and throughout his [or her] term of office shall be an elector of the town" (emphasis by the court). An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).

Although the Town Law identifies some town officers that must be town residents, such as town supervisor and superintendent of highways, this listing, said the court, is not exhaustive and specifically provides that "[a]ll other officers and employees in such a town shall be appointed by the town board." In other words, the state law provides that if a town enacts a local law creating a public or civil office and the person appointed to it is a town officer, the appointee must be a town resident.

However, as neither the Public Officers Law nor the Town Law defines what constitutes a public or civil office or who qualifies as a town officer, the Appellate Division ruled  that such a determination must of necessity depend upon the nature of the position, its role in town governance and whether the position involved has responsibilities that require a "high degree of initiative and independent judgment" The Appellate Division also noted “other factors to be considered are whether an oath of office*** is required and whether the appointment is for a definite term,” citing 2006 Atty Gen [Inf Op] 1032).

The court then ruled:

“Here, the Commissioner of Public Works takes an oath of office (see Town of Colonie Code § 34-10), serves a two-year term and, according to the Town Code, is "the principal executive officer and administrative head of the Department of Public Works . . . with such powers as shall be necessary for the proper administration of the Department of Public Works consistent with applicable laws" (Town of Colonie Code § 34-3 [A]). Given the nature of this position — and the crucial role it plays providing essential services for the Town — we conclude that the Commissioner of Public Works is a town officer who must be a town resident. Since Cunningham has acknowledged that he was not a Town resident when he was appointed to this position, and does not intend to become one in the future, his appointment as Commissioner of Public Works does not comport with relevant state law and is invalid.

Const, art VIII, § 1), we note that no one has claimed during this proceeding that these payments were not made for services rendered. As such, the conclusion reached herein does not serve to alter the fact that Cunningham earned the compensation for which he was paid and, as such, the salary and benefits he earned while serving in this position did not constitute an illegal gift of public funds.

“As for Burick's appointment as Personnel Officer, the Town Law specifically provides that "[w]henever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy" and that when "the appointment [is] made to fill a vacancy in an appointive office, the person so appointed shall hold office for the remainder of the unexpired term" (Town Law §64[5] [emphasis by the court). This provision is controlling and, thus, as Supreme Court found, Burick's appointment as Personnel Officer must be limited to the remainder of his predecessor's unexpired term (see Civil Service Law §15[1][b])****.”

* Ricket also sought a declaration that the salary and benefits paid to Cunningham while he served as Commissioner constituted "an unconstitutional gift of public funds" that must be returned to the Town.

** An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).

*** See, also, Civil Service Law §62 which, in pertinent part, “Every person employed by the state or any of its civil divisions, except an employee in the labor class, before he shall be entitled to enter upon the discharge of any of his duties, shall take and file an oath or affirmation in the form and language prescribed by the constitution for executive, legislative and judicial officers….. execute his or her requires “Constitutional oath upon appointment.”

**** Civil Service Law §15[1][b], in pertinent part, provides that the Personnel of a suburban town described in subdivision four of section two of this chapter shall be appointed by the town board of such town. … The term of office of a personnel officer shall be six years…. A personnel officer shall have all the powers and duties of a municipal civil service commission.

The decision is posted on the Internet at:  
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02520.htm
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Challenge to dress code alleges gender discrimination

Challenge to dress code alleges gender discrimination
Matthews v City of New York, 270 AD2d 45

While claims of unlawful discrimination based on an employer’s dress code are not as common as they once were, dress code gender discrimination was one of the claims made by provisional caseworker, Makebra Matthews, after she was terminated from her job with the City’s Administration for Children’s Services [ACS].

Matthews, in an effort to regain her former position, alleged that the city was guilty of gender discrimination because it disapproved of her manner of dress and fired her. She contended that her dismissal resulted from ACS’s enforcing a dress code that allowed men, but not women, to wear sexually provocative or otherwise inappropriate clothes at work.

The city, on the other hand, argued while Matthews’ dress might be inappropriate for the workplace, the only reason it had dismissed her was because it was dissatisfied with the way she performed her assignments. Was this a mixed motive case?*

The Appellate Division ruled in favor of the city, commenting that Matthews had failed to make out a prima facie case of discrimination based on sex.

The court said that the city presented abundant evidence showing reasons for being dissatisfied with [Matthews] entirely apart from her manner of dress.

Dismissing Matthews’ complaint, the Appellate Division explained that [a]bsent a prima facie showing of discrimination, the mixed-motive analysis set out by the U.S. Supreme Court in Price Waterhouse v Hopkins is not applicable.

* See Price Waterhouse v Hopkins, 490 US 228

Employee penalized 15 days of vacation leave for failing to comply with his supervisor's lawful order

Employee penalized 15 days of vacation leave for failing to comply with his supervisor's lawful order
Binford v Safir, App. Div., 270 AD2d 129

His failure to comply with a lawful order by his superior cost New York City police officer Warren Binford 15 days of his accumulated vacation credits.

Although Binford attempted to have the courts overturn the disciplinary action taken against him, the Appellate Division dismissed his appeal, noting that the record contained substantial evidence that Binford did not obey [a] superior officer’s order to leave the radio room when directed to do so.

The substantial evidence: testimony by Binford’s superior officer.

The court noted that evidence presented during the disciplinary hearing raised a question that was essentially one of credibility. It, however, said that the Commissioner’s crediting the superior officer’s testimony over that given by Binford was a proper exercise of the Commissioner’s discretion.

Holding that the penalty imposed “does not shock to our sense of fairness,” -- the standard established by the Court of Appeal in Pell v Board of Education, 34 NY2d, 222 -- the court dismissed Binford’s petition.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Former Otisville treasurer pleads guilty to embezzling town funds

Former Otisville treasurer pleads guilty to embezzling town funds

Source: Office of the State Comptroller

The former Otisville treasurer will serve up to three years in jail and reimburse the village $77,000 after pleading guilty today in Orange County Court to grand larceny following an investigation by State Comptroller Thomas P. DiNapoli, the New York State Police and the Orange County District Attorney’s Office. Barbara McDowell is scheduled to be sentenced on June 10.

“McDowell took advantage of the trust of her fellow village residents to line her own pockets,” DiNapoli said. “I want to thank the State Police and Orange County District Attorney Frank Phillips for their assistance in retrieving the thousands of public dollars stolen during McDowell’s tenure.”

Investigators determined McDowell misappropriated village funds over a six-year period by writing at least 30 unauthorized checks to herself, including extra payroll and health benefit waiver checks. McDowell attempted to conceal her theft through poor record keeping and falsifying records.

DiNapoli’s office was alerted by Otisville Mayor Brian Wona after his office discovered that the village’s bank accounts were nearly depleted and requested an examination. In addition to the findings against McDowell, the subsequent audit detailed the lack of adequate internal controls and inadequate policies and procedures in Otisville.

The Comptroller’s office identified irregularities in Otisville’s financial records management as far back as 1999. Subsequent audits in 2002 and 2006 recommended several corrective actions, which were never followed.  After the Comptroller’s 2010 audit, the village and mayor committed to adopting policies and procedures to address these issues.  

A copy of the audit can be found at; http://osc.state.ny.us/localgov/audits/villages/2010/otisville.pdf
 
The Comptroller encourages the public to help fight against fraud and abuse.  New Yorkers and others may report allegations of fraud, corruption and abuse of New York State taxpayer monies and, or, property by: calling the Comptroller’s toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us, or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.
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Free speech limitations on public employees

Free speech limitations on public employees
Wasson v Sonoma Co. Jr. Coll., 204 F.3d 659

A public employee may claim that he or she was disciplined as a result of his or her exercising his or her constitutionally protected right of free speech.

This was Sonoma County Junior College instructor Sylvia J. Wasson’s argument following her termination from her position. The reason for her dismissal: the College Board decided that she was the anonymous writer of six defamatory letters and flyers that vilified the college president, Robert Agrella.

Wasson sued, claiming the college’s action violated her First Amendment rights. Wasson, however, had denied writing the five letters and the flyer she claimed was the reason underlying her termination. Her denial proved fatal to her wrongful termination in retaliation for exercising her right to free speech argument.

The U.S. Circuit Court of Appeals, Ninth Circuit, said that a free speech claim depends on speech.... In what may be a variation of Catch 22, the court said that because Wasson denied writing the letters or otherwise being involved in the affair, she had no basis for claiming her right to free speech had been violated.

In the words of the court, “[w]e conclude that the plaintiff fails to state a First Amendment claim in these circumstances because she cannot show the alleged wrongful conduct was in retaliation for any exercise of her free speech rights.”

Wasson also presented an alternative argument: she was defending the First Amendment free speech rights of the actual writer of the offending letters and flyer.

The court dismissed this theory as well. The Circuit Court ruled that Wasson lacked standing because she did not show that she had any relationship to, or with, the alleged anonymous writer, the second prong of the three-prong test set out in Powers v Ohio, 499 US 400.

In order to prevail on the basis of a defending the free speech of others argument, the individual must show that he or she (1) actually suffered an injury in fact, (2) had a close relation to the third party, and (3) there was some hindrance to the third party’s ability to protect his or her own interests.

Further, the courts typically distinguish between a public employee’s exercising his or her right to free speech concerning a matter of public interest in contrast to speech that essentially involves the individual’s personal interests. Pickering v Board of Education, 391 US 563, sets out the tests applied by the courts in such cases.

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The approval of a leave of absence by individual not authorized to approve such leave is invalid

The approval of a leave of absence by individual not authorized to approve such leave is invalid

Renaud v City of New York, 269 AD2d 283

From time to time an individual is absent from work without approval – AWOL. What happens if the individual is absent after receiving approval to go on leave but the individual approving the leave is not authorized to grant such approval? This was an issue in the Renaud case.

Renaud was terminated because she was absent from her position without approval [AWOL] for three months. Renaud’s defense: one of the agency’s employee relations specialists approved the absence and therefore the agency cannot deem her to have been AWOL.

This seems to be an easy issue to decide, except although the employee relations specialist involved was not authorized to approve the leave in the first instance, the specialist was unaware that Renaud had been already referred for discipline because of her AWOL status.

May the employee rely on the unauthorized approval of her absence? This was the question considered by the Appellate Division when Leslie Renaud sued the Administration for Children’s Services in an effort to be reinstated to her position with the agency.

The court said that Children’s Services’ decision to terminate Renaud for a three-month absence without leave that was in flagrant violation of the agency’s time and leave rules was neither arbitrary nor capricious and sustained Children’s Services decision to terminate her.

What about Renaud’s claim that one of the agency’s employment relations specialists had approved her leave. In effect, Renaud contended Children’s Services was estopped from considering her absence AWOL since the employee relations specialist had approved it.

The Appellate Division quickly disposed of this argument. It said that estoppel is not available against an administrative agency for the purpose of ratifying administrative error.

Accordingly, Renaud could not rely on the approval of her leave by the employee relations specialist to neutralize the agency’s decision to dismiss her as the employee relations specialist was not authorized to grant any such approval on behalf of Children’s Services.

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Considering the value of toxicology reports in random drug tests

Considering the value of toxicology reports in random drug tests

Seeley v New York City, 269 AD2d 205

Are uncertified toxicology reports indicating positive drug test results sufficient to support a decision to terminate an employee? This was the issue presented by Clarice E. Seeley, a New York City police officer, who was terminated after being found guilty of testing positive for cocaine in a random drug test.

Seeley argued that due process required the court to vacate the police commissioner’s decision because it was not supported by substantial evidence. Seeley contended that the commissioner based his ruling on unreliable toxicology reports because they were not certified copies.

The Appellate Division was not impressed by this argument. After commenting that an administrative tribunal is not strictly bound by the rules of evidence, the court pointed out that foundation testimony by the toxicologist who supervised the testing and prepared the final toxicology reports was more than adequate to establish the authenticity and reliability of the copies of the reports entered into evidence.

Also noted was the fact that Seeley’s attorney declined the hearing officer’s invitation to examine the original toxicology reports before copies of them were received in evidence. The Appellate Division then sustained Seeley’s dismissal, commenting that the penalty does not shock our sense of fairness under the circumstances.

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