Appointment and removal of town court clerks

Appointment and removal of town court clerks

Reno v Van Voris, 170 Misc.2d 187, 230 A.D.2d 296

Section 20.1(a) of the NYS Town Law provides that the clerk of a town court "shall be employed and discharged from employment only upon the advice and consent of the town justice or justices." The Reno decision indicates that this 1990 amendment to the Town Law [Chapter 252, Laws of 1990] is to be strictly applied.

Roberta Reno was appointed as town court clerk by Town Justice Charles Assini, Jr., in 1988 and "was solely under his supervision."

In March 1996 Town of East Greenbush Town Justice Catherine Cholakis, the other of the Town's two sitting Town Justices, wrote the Town Supervisor requesting that Reno be terminated because of her alleged failure to correct deficiencies noted in an audit by the State Comptroller. This resulted in the Town Board's voting to suspend Reno without pay "until further notice" the following June.

Reno successfully challenged this action by the Board, winning a court order directing her reinstatement with back salary and benefits.

The Appellate Division affirmed, agreeing with the lower Court that Reno's unconditional and indefinite suspension without pay constituted a "discharge" within the meaning of Section 20.1(a).

The Appellate Division said that the legislative intent in amending Section 20.1(a) was to "blend the actions of the Town Board with the wishes of the Town Justice to whom the Court Clerk reports and to provide Town Justices with control over the selection and removal of their Court Clerks." As Reno was solely responsible to Justice Assini at the time of her suspension, the Court said that Assini's consent was required before the Town Board could be authorized to discharge her.
.

State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error

State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error
2013 NY Slip Op 07238, Appellate Division, Third Department

A police officer [Officer] submitted an application for disability retirement benefits. While his application was pending, Officer’s employer filed disciplinary charges against him and, on November 19, 2007, he was terminated by the employer.

Officer’s application for disability retirement benefits was approved on August 12, 2008 and his effective retirement date was set as November 17, 2007, the date of Officer's last day on the employer’s payroll as reported by the employer.

However, after receiving additional information from the employer indicating that Officer had, in fact, remained on the employer’s payroll through November 19, 2007, the Retirement System adjusted Officer’s retirement date to November 20, 2007. 

Following an unsuccessful administrative appeal seeking to reinstate November 17, 2007 as the effective date of his retirement for disability, Officer filed an Article 78 petition seeking a court order vacating the Comptroller’s determination.

The Appellate Division affirmed the administrative determination noting that Comptroller “is vested with the exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld.”  Citing 2 NYCRR 309.6, the court said that the effective date of a member's disability retirement is either [1] "on the date of filing of such disability retirement application" or [2] "on the day after the last date on which the member receives salary, whichever is later."

As the Comptroller is required to correct any changes or errors affecting a retiree's benefits upon discovery thereof, notwithstanding Officer's claim that his effective retirement date was changed as a result of actions taken by the employer in retaliation for a civil rights claim that he had asserted against it, the Appellate Division held that the Comptroller is entitled to rely upon the payroll information provided by the employer.

As the record reflected Officer's termination date from the payroll as November 19, 2007, the Comptroller’s determination was held to be supported by substantial evidence and Appellate Division said that it found no basis to disturb it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07238.htm

.

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy
Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*

A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.

The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.

After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.

The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”

Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."

As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”

In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.

Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”

Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."

The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”

* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07235.htm

The Massaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07234.htm
.