Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code
Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division, Fourth Department

When the Town Board of Town of Amherst (Board) terminated James D. Peck’s employment with the Town because he failed to satisfy the residency requirements set out in the Town’s Code,* he filed an Article 78 challenging the Town's action.

Supreme Court dismissed certain allegations advanced by Peck but held his allegations that the Board's determination was arbitrary and capricious and that the Board failed to make findings of fact in support of its determination in abeyance, remitting the matter to the Board "for a fuller explication of its rationale for determining that [Peck]" failed to satisfy the residency requirements.

Although the Town invited Peck to appear before the Board and present evidence of his being domiciled within the Town, neither he nor his attorney appeared at that meeting. Peck’s attorney, however, subsequently submitted documentary evidence that allegedly established Peck’s domicile in the Town.

Upon receipt of the amplified findings of fact made by the Board, Supreme Court dismissed these remaining causes of action, determining that the Board's determination resulting in Peck's termination was neither  arbitrary nor capricious.

Peck’s appealed, contending that Supreme Court erred in remitting the matter to the Board for further findings of fact. The Appellate Division dismissed this argument, noting that he was not prejudiced by the remittal inasmuch as, in doing so, Supreme Court effectively extended the date for him to establish a domicile in the Town and that the remittal also afforded him another opportunity to answer questions from the Board concerning his claim that he was domiciled within the Town and to submit additional evidence in support of that claim.

As to domicile, the Appellate Division explained that:

[1] ”An existing domicile, whether of origin or selection, continues until a new one is acquired, and a party, [such] as [Peck] here, alleging a change in domicile has the burden to prove the change by clear and convincing evidence;" and

[2] "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention' to abandon the former and make the new locality a fixed and permanent home."

Peck, said the court, “was not domiciled in the Town when he was hired, nor was he domiciled there for at least two years after that time.”

Although the Town granted Peck two six-month extensions to meet the residency requirements, it denied his requests for further extensions, indicating that it intended to enforce the residency requirements against him. Peck then claimed that he had established domicile by renting a room in a house located within the Town despite his earlier acknowledging that renting "that room would not satisfy the Town's residency requirements."

Notwithstanding Peck’s claim that he thereafter informed the Town that he was "losing" his home in Buffalo to creditors and thus demonstrated that he intended to make the single room that he rented in a house in the Town his domicile, the Appellate Division said that “There is no evidence in the record” supporting such an allegation.

Further, said the court, “the mere fact that [Peck] may have been losing his home in Buffalo did not standing alone establish that his domicile was in the Town” and affirmed Supreme Court’s dismissal of Peck’s Article 78 petition.

* The relevant provisions of the Town Code provide: § 45-3, "any person who enters Town service . . . shall be a resident of the Town on the date that the employee enters Town service and shall thereafter maintain residence in the Town as a condition of employment . . . Failure to establish or maintain Town residence as required by this section shall constitute a forfeiture of employment . . . ." The Code defines "[r]esidence" as "[d]omicile" and "[r]esident" as "[d]omiciliary" (§ 45-2).

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

The five most visited NYPPL postings during the week ending March 25, 2012

The five most visited NYPPL postings during the week ending March 25, 2012

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

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Tier VI Retirement - Chapter 18 of the Laws of 2012

Taxpayer’s Guides to Audits by the State Comptroller

Source: office of the State Comptroller

As part of an ongoing effort to make government more transparent, accessible and accountable to New York, State Comptroller DiNapoli has created concise, easy–to–read summaries of each audit called Taxpayers’ Guides to Audits. 

One guide captioned "SGA," reports on audits of State departments and agencies, New York City agencies and Public Authorities.

A second, captioned "LG," sets out summaries of audits of local governments and school districts



NYPPL readers may access the Taxpayers’ Guides by clicking here.

The State Comptroller's audit of the Bombay Fire Company prompts the filing of forgery and other charges against the Fire Company’s former President

The State Comptroller's audit of the Bombay Fire Company prompts the filing of forgery and other charges against the Fire Company’s former President

Source: Office of the State Comptroller

Former Bombay Fire Company president Bridget Martin was charged with forgery and offering a false instrument for filing by the New York State Police in Franklin County on March 22, 2012 in connection with an investigation by State Comptroller Thomas P. DiNapoli’s office which found that more than $67,000 in department funds were missing.

The Comptroller’s press release concerning the allegations filed against Ms. Martin is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/mar12/032312.htm

The Comptroller’s audit report of the Fire Company is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/firedists/2011/bombay.pdf

A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer
Baker v Poughkeepsie City School Dist., 2012 NY Slip Op 02126, Court of Appeals

Must persons who have testified in a Civil Service Law §75 disciplinary hearing disqualify themselves from subsequently acting upon any of the charges related to that hearing?

In most instances, said the Court of Appeals, the answer is "yes," holding that when the testimony of the testifying witnesses concerning the charges levied pursuant to §75, rendered them personally involved in the disciplinary process, disqualification is necessary.

According to the decision, the Superintendent of Schools of the Poughkeepsie City School District preferred eight charges of "misconduct and/or incompetence" against Jeffrey Baker, the then Business Manager of the School District.

The Board of Education appointed a hearing officer to preside over the disciplinary action. Two Board members testified at the disciplinary hearing. The hearing officer reported to the Board his findings and recommended that Mr. Baker be found guilty of the eight charges and that his services be terminated.

The Board, including the two members that testified at the hearing, adopted the findings and recommendations, and terminated Mr. Baker's employment. Mr. Baker, challenging the Board's determination, filed a petition pursuant to CPLR Article 78.

The Appellate Division "grant[ed] [Mr. Baker’s] petition, annul[led] the determination, and remit[ted] the matter to the Board, excluding the members of the Board who testified at the disciplinary hearing, for a review of the findings and recommendations of the hearing officer." The School District appealed and the Court of Appeals affirmed the Appellate Division’s ruling.

The Court of Appeals explained that “Although ‘[i]nvolvement in the disciplinary process does not automatically require recusal,’ we recognize that individuals ‘who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of the hearing officer and from acting on the charges’"

Accordingly, said the court, it is appropriate for a witness testifies in the course of a disciplinary hearing concerning charges levied against an individual, to recuse himself or herself from reviewing the recommendations of the hearing officer and rendering a final determination [see Informal Opinions of the Attorney General, 99-21].

However, not all testimony will require disqualification with respect to reviewing the recommendation of the hearing officer and participating in the final decision making process. Such disqualification, said the court, is only required “where the testimony of the official directly supports or negates the establishment of the charges preferred.”

The court then noted an exception to this -- the “Rule of Necessity.” Such disqualification in a §75 proceeding is inappropriate where “such person is necessary to effectuate a decision.”*

In this instance the two witnesses were “extensively involved in the disciplinary process.”  As neither of their votes were needed to take disciplinary action, obviating the “Rule of Necessity, the Court of Appeals decided that the Appellate Division properly granted the petition, annulling the determination and remitting the matter to be decided without the testifying board members.

Justice Pigott, however, dissented from the majority opinion, noting that in his view the two members of the Board that testified “were not required to disqualify themselves from rendering a determination on the hearing officer's recommendation,”

Noting that “In response to the Appellate Division's directive that the matter be remitted for a decision without the participation of [the two board members that testified], the school board did that and voted to terminate Mr. Baker for cause. All our decision will mean is, notwithstanding the fact that Mr. Baker never challenged the testimony proffered against him, Mr. Baker will nonetheless recover back pay to which, by all accounts, he is not entitled.”

Justice Pigott said that “the majority's opinion today has consequences that extend beyond this case. There is nothing to prevent industrious attorneys for employer and employee alike from subpoenaing pertinent members of the governing boards to proffer testimony on matters tangential to the issues, thereby obtaining disqualification of members who they expect to vote counter to the interests of their clients, or at the very least, engaging in a contest of this nature, buying valuable back pay considerations as the matter is litigated - precisely what Civil Service Law §75 was designed to avoid” and would reverse the order of the Appellate Division.

* In most instances where a “single appointing authority” is a witness at the disciplinary action, he or she will designate another individual to review the hearing officer’s findings and recommendation and make the final determination as to the penalty to be imposed. Further, in some disciplinary procedures, such those set out in §3020-a of the Education Law, the “decision maker” is not the appointing authority and either the accused employee or the appointing authority may appeal the arbitrator’s determination and, or, the penalty imposed. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02126.htm

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1476 page e-book. For more information click on http://booklocker.com/books/5215.html

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An appointing authority may agree to limit its discretion with respect to selecting an individual for appointment to a position without offending public policy

An appointing authority may agree to limit its discretion with respect to selecting an individual for appointment to a position without offending public policy

Matter of Lucas (City of Buffalo), 2012 NY Slip Op 01886, Appellate Division, Fourth Department

An arbitrator ruled that the City of Buffalo had violated the collective bargaining agreement (CBA) by ignoring a binding past practice concerning who should be offered  “the right of first refusal for the acting-time position [sic] of Assistant Water Distribution Superintendent.*”

Ultimately the parties were unable to implement the arbitration award and the arbitrator directed the City to pay one individual the sum of $54,282.71 and a second the sum of $1,094.99 based on its failure to provide the two employees “with the right of first refusal.”

Supreme Court confirmed both awards and denied the City’s counterclaims to vacate the awards.

The City appealed, contending that the awards require them to violate Civil Service Law §61(2) and §64(2) and are against public policy. The Appellate Division disagreed and sustained Supreme Court’s ruling.

The court explained that while §61(2) prohibits employees from serving “out-of-title” in nonemergency situations, the City’s submissions to the court establish that, at least during the relevant time period, it considered acting-time positions to be temporary appointments under §64(2), and such temporary appointments are made "without regard to existing eligible lists."

Further, said the court, §64(2) does not specify that there must be an emergency situation for an employee to be temporarily appointed to work for a period not exceeding three months in an acting-time position, citing CSL §61[2]. Nor, said the Appellate Division, was there any indication in the record that the employees who worked in acting-time positions during the time period involved in the grievance were improperly appointed to those positions in violation of the Civil Service Law.

Although as noted §64(2) places a three-month time limit on temporary appointments that are completed without reference to an existing eligible list, the arbitration award did not require the City to grant the most senior caulker supervisor an acting-time position whenever an Assistant Water Distribution Superintendent is absent. The award “merely states that, if there is an acting-time position, then the right of first refusal must be given to the most senior caulker supervisor.”

The Appellate Division also rejected the City’s argument that “under the circumstances of this case, a limitation on their discretion regarding acting-time positions violates public policy.” Citing  Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, the court said that “A public employer is not prohibited by public policy considerations from agreeing to limit its discretion in the manner in which it appoints employees.”

In the Buffalo Board of Education case the parties’ collective bargaining agreement provided that appointments to vacant positions in the competitive class would be made in accordance with the “Rule of One,” sometimes referred to as the “Rule of the List,” whereby the highest person on the eligible list for appointment to a position in the competitive class willing to accept the appointment would be appointed to the vacancy notwithstanding the so-called “Rule of Three” set out in §61.1 of the Civil Service Law.

In contrast, the Rule of One applies with respect to selection of the individual for appointment from a preferred list [see CSL §81.2].

* The arbitration award did not define what constitutes an “acting-time position.”

The decisions is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01886.htm