Absent a statutory basis for a public referendum there is no clear legal right to a court's granting an order in the nature of mandamus to compel the holding of a public referendum

Qualified electors of a Town [Plaintiffs] filed a proceeding pursuant to CPLR Article 78  seeking a court order in the nature of mandamus compelling the Town [Respondents] to conduct a special election providing for certain term limits for the offices of Town Supervisor and members of the Town Board. Supreme Court dismissed Plaintiff's the petition for failure to state a cause of action and, in effect, denied the petition and dismissed the proceeding. Plaintiff appealed the Supreme Court's ruling.

The genesis of this Article 78 action was the Plaintiffs' filing a petition under color of Town Law §81(4) asking the Town to hold a referendum on a proposition to limit the terms of the Town Supervisor and members of the Town Board to "no more than two consecutive terms." The Town Board did not reject the petition filed by the Plaintiffs but took no further action on it on the advice of the Town Attorney. The Town Attorney had concluded that Town Law §81 did not permit a referendum concerning term limits.

Finding that there was no statutory basis for a public referendum on this particular issue, the Appellate Division ruled that Plaintiffs' petition failed to adequately allege a clear legal right to the relief Plaintiffs sought and sustained the Supreme Court's granting the Respondents' motion to dismiss Plaintiffs' petition for failure to state a cause of action

The Appellate Division explained that the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and then only where there exists a clear legal right to the relief sought, citing Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12. Further, said the court, a town may not submit a proposition to the electorate "in the absence of express statutory authority permitting it to do so."

Noting that Town Law §81(1)(d) specifically provides that: "The town board may upon its own motion and shall upon a petition ... cause to be submitted at a special or biennial town election, a proposition ... [t]o vote upon or determine any question, proposition or resolution which may lawfully be submitted, pursuant to this chapter or any general or special law," the court opined that such language "only operates if submission of the proposition to the electorate has been specifically validated by some other law."

As Plaintiffs failed to set forth separate statutory authority for a public referendum on this particular issue, the Appellate Division held that Plaintiffs' petition failed to adequately allege a clear legal right to the relief sought, a court order in the nature of mandamus compelling the Respondents to conduct such a special election, sustained Supreme Court's decision granting the Respondents' motion to dismiss the Plaintiffs' petition for failure to state a cause of action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04476.htm

A disciplinary penalty should not be set aside by a court where it is not irrational and does not shock the conscience

The appointing authority [School District] filed disciplinary charges alleging various instances of misconduct against a tenured teacher [Plaintiff] pursuant to Education Law §3020-a. The hearing officer sustained certain specifications of misconduct, finding that the Plaintiff was guilty of "neglect of duty, conduct unbecoming of a professional, and insubordination and imposed termination of Petitioner's employment as the penalty.

Plaintiff filed an appeal pursuant to CPLR Article 75 challenging the disciplinary action, seeking a court order vacating the determination of the hearing officer. Supreme Court vacated the determination of the hearing officer to the extent of the penalty imposed, termination, and remitted the matter back to the hearing officer for a new penalty determination.  

The School Districtappealed the Supreme Court's ruling whereupon the Appellate Division reinstated and confirmed the arbitration award and then remitted the matter to the Supreme Court "for the entry of an appropriate judgment."

The Appellate Division explained that Education Law §3020(1)* controls  in the event the appointing authority initiates a disciplinary action against a tenured teacher and provides that "[n]o person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause" and in accordance with statutory procedures.

Further, opined the Appellate Division, "A court may set aside an administrative [disciplinary] penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness" and the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for ... refashioning the penalty." In the words of the court, "A [disciplinary] penalty should not be set aside where it is not irrational and does not shock the conscience."

Finding that "in light of all of the circumstances of this case, the penalty of termination is not irrational and does not shock the conscience," the Appellate Division concluded that Supreme Court should not have granted that branch of the Plaintiff's petition seeking to vacate the penalty of termination of the Plaintiff's employment as a tenured teacher.

* Citing Matter of Watkins v Board of Educ. of Port Jefferson Union Free School Dist., 26 AD3d 336, the Appellate Division noted that §3020 is the "exclusive method of disciplining a tenured teacher in New York State."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04474.htm

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Restoration to the payroll following an employee's being suspended without pay after being served with disciplinary charges

The appointing authority terminated an employee [Plaintiff] following a §75 hearing. Plaintiff challenged his termination and the Appellate Division found that the Plaintiff's termination was based on "the improper consideration of irrelevant matter." Explaining that in such situations an employee may not be suspended without pay for more than 30 days, the court ruled that Plaintiff was entitled to go back on the payroll pending the results of a new hearing.* 

An employer who has preferred charges against an employee sometimes wishes to avoid having the employee at the work site while the charges are pending. This decision supports restoring a suspended employee to the payroll upon the expiration of the period of suspension without pay otherwise permitted by law or a Taylor Law agreement without having the employee actually returning to the work site.

In contrast, a number of Taylor Law** collective bargaining agreements [CBA] include provisions permitting the appointing authority to suspend employees without pay upon the serving of disciplinary charges until a final disciplinary decision is made while other CBAs permit the appointing authority to deny the charged individual access to the work site but require the employee to be continued on the payroll while the disciplinary action is pending. Courts have upheld the lawfulness of both of these types of CBA contract provisions. 

* In this instance the court directed the appointing authority to pay Plaintiff "the salary he would have earned for the period beginning 30 days after his suspension without pay, less any compensation he derived in that period from other employment, unemployment benefits, or disability or workers' compensation benefits." 

** Article 14 of the New York State Civil Service Law.

The decision is posted on the Internet at: 
https://casetext.com/case/matter-of-chopay-v-town-of-oyster-bay