Determining legislative intent in interpreting a statute

In a consolidated proceeding pursuant to Election Law Article 16, petitioners [Plaintiffs] sought judicial review a determination of the Suffolk County Board of Elections denying Plaintiffs' objections to a petition designating Kate M. Browning as a candidate in a primary election and sought a court order to compel the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot in that primary election and other relief.

Supreme Court granted Plaintiffs' petition and issued a "final order" compelling the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot. Supreme Court had concluded that Ms. Browning was ineligible to serve as a Suffolk County Legislator as a term limits provision in the Suffolk County Charter*  provided that "[n]o person shall serve as a County Legislator for more than 12 consecutive years".

Ms. Browning appealed and the Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division, noting that "[T]he plain language of the statute ... is the clearest indication of legislative intent," opined that Article II, §C2-5[B] does not expressly impose any total or lifetime term limit. Rather, said the court, "the plain language of the provision only prohibits a County Legislator from serving more than 12 consecutive years." Citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, the Appellate Division said that in construing a statute, "words must be 'harmonize[d]' and read together to avoid surplusage."**

Accordingly, the court declared that the provision set out in the County Charter relied upon by Petitioners seeking the removal of Ms. Browning's name from the ballot in the primary election "should not be interpreted as prohibiting an individual who has previously served as a County Legislator for 12 consecutive years from thereafter seeking a new term in that office, so long as the new term sought is not consecutive to the preceding term."

Thus, said the Appellate Division, Supreme Court should have denied the Plaintiffs' petitions and dismissed the proceeding.

* See Article II, §C2-5[B].

** Courts should not interpret any statutory provision in a way that would render it or another part of the statute inoperative or redundant. 

Click HERE to access the Appellate Division's decision.

A request for reconsideration of a final administrative determination does not extend or toll the running of the statute of limitations

The Petitioner [Plaintiff], a retiree, in this CPLR Article 78 challenged the appointing authority's [Town] decision denying his request to change his health insurance provider. The Town moved to dismiss Plaintiff's action, contending that it was untimely.

Supreme Court granted Town's motion for summary judgment and, in effect, dismissed the proceeding. Petitioner appealed but the Appellate Division affirmed the lower court's ruling, with costs.

In affirming the lower court's ruling, the Appellate Division:

1. Noted that an Article 78 proceeding must be commenced within four months after the administrative determination sought to be reviewed becomes final and binding upon the petitioner;

2. Explained that an administrative determination "becomes final and binding when 'the agency ... reache[s] a definitive position on the issue that inflicts actual, concrete injury and ... the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party'";

3. Pointed out that the party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was notified of the determination more than four months before the proceeding was commenced; and

4. Observed that "... a request for reconsideration of an administrative determination does not extend or toll the statute of limitations or render the otherwise final determination non-final unless the agency's rules mandate reconsideration."

Here, said the court, the Town's determination denying Plaintiff's request to change his health insurance provider became final and binding no later than February 8, when the Plaintiff received notice of the denial by telephone and email. Accordingly, the Appellate Division concluded that Plaintiff's petition, filed in September, was untimely.

Click HERE to access the Appellate Division's ruling. 

 

Audits and reports issued during the week ending May24, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 21, 2021.

Click on the text highlighted in colorto access the complete audit report.

Local Governments

Brooktondale Fire District – Purchases and Disbursements (Tompkins County) - District officials ensured the purchases and disbursements auditors examined were proper and supported.  Auditors reviewed 39 disbursements (totaling $119,590) of 304 disbursements (totaling $826,000) paid during the audit period. The auditors found the reviewed purchases followed the district’s purchasing policy, were adequately supported, and approved prior to payment. As a result of this audit, there were no recommendations

City of Cortland – Credit Accounts and Employee Reimbursements (Cortland County) - City officials did not ensure all credit account purchases and employee reimbursements were properly supported and for appropriate purposes. There were no formal city-wide policies in place to address the usage, documentation and approval of credit account purchases. As a result, 314 of the 438 (72 percent) claims auditors reviewed were either not properly supported or for questionable or inappropriate purchases.

Town of Caneadea – Fund Balance Management (Allegany County)- The board did not effectively manage fund balance and spent down fund balance by $427,000 or 71 percent. The board also appropriated fund balances the town did not have, which resulted in deficit, or negative fund balances, in the general fund. The board did not develop and adopt a comprehensive written fund balance policy, a multiyear financial plan, or capital plans. As a result, the board’s ability to know what effect financial decisions would have on future fund balance levels was diminished.

Herkimer-Fulton-Hamilton-Otsego Board of Cooperative Educational Services (BOCES) – Online Banking (Fulton County, Hamilton County and Otsego County)- BOCES officials did not establish adequate controls to ensure online banking transactions were appropriate and secure. Online banking transactions are not compared to supporting documentation. Bank agreements lack important components such as identifying who is authorized to process online banking transactions or requiring the bank to provide confirmations of online transactions. A dedicated computer is not used for online banking.

In addition, auditors conducted reviews of 20 adopted budgets of various counties, cities, towns and villages across the state to assess whether local officials adequately considered the impact of the pandemic on their financial operations while developing their 2021 fiscal year budgets. Below are the findings of some of the communities reviewed:

Adequacy of 2021 Budgets – Genesee County - Genesee County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Town of Herkimer (Herkimer County)- Town of Herkimer officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – City of Norwich (Chenago County) - City of Norwich officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Village of Ossining (Westchester County)- Village of Ossining officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – City of Saratoga Springs (Saratoga County)- City of Saratoga Springs officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget. However, city officials should develop a plan and make budgetary modifications to balance the budget for the $1.15 million Federal aid revenue shortfall. They should also closely monitor revenue estimates for Aid and Incentives for Municipalities (AIM) funding and Video Lottery Terminal (VLT) aid throughout 2021 and develop a plan to balance the budget in the event these revenue projections are not fully realized. 

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