The resolution that was entered in the July 9, 2014 town board minutes did not state a reason for the termination, but at the meeting Supervisor Tyksinski said it was because “the town was going in a different direction”.
Over the past couple of months the employee termination has been brought up by several people I have met; the topic even made it to the Utica Topix website.
According to Town Law Section 20, court clerks are appointments of the town justice(s):
“The clerk of the court of a town shall be employed and discharged from employment only upon the advice and consent of the town justice or justices.”Talk around town is that neither town justice requested that the employee be terminated, so just what is going on?
Further research revealed that Town Law 20 was actually amended in 1990 so that the justices would have complete control over hiring and firing of their clerks.
In a NYS Attorney General Informal Opinion written by JAMES D. COLE, Assistant Attorney General in Charge of Opinions, on another question that also referenced Town Law 20, it is written:
"This language was added by chapter 252 of the Laws of 1990. The legislative bill jacket indicates that the sole purpose of the amendment was to require that town justices consent to the employment and discharge of court clerks. L 1990 ch 252, Bill Jacket, Memorandum on Senate 3566 and Assembly 5740 by Senator Volker and Assemblyman Graber.”The reasoning for the change in Town Law 20 in 1990 according to the NYS Attorney General Opinion is:
“Each town justice is required to keep legible and suitable books, papers, records and dockets. Id. They are required to maintain financial records and promptly deposit all money received by the court. Id. For failure to comply with these responsibilities, town justices may be disciplined or even removed from office. Id. In order to discharge these responsibilities, local justices are heavily dependent upon the ability, industry and trustworthiness of the clerks of their courts. Id. Through the amendment to section 20 of the Town Law, town justices have been given the authority to consent to the employment and discharge of their court clerks on whom they rely heavily.”
But has it been tested in the courts?
Why yes it has…in RENO v. VAN VORIS, Supreme Court, Rensselaer County, November 6, 1996.
In that particular case, the East Greenbush, NY town board tried to play the "semantics game" by unanimously suspending one of their court clerks and argued that since she was suspended and not discharged, the law doesn’t apply. They further argued that one of the town justices was in favor of suspending the court clerk, but it was not the justice who was in direct supervision of the clerk.
The court disagree and "was of the opinion that neither contention withstands scrutiny". The court further explained their reasoning, but I won’t bore everyone with the facts; you can read the entire decision here.
In brief, the court said that:
”… the Town Board's action of unconditionally suspending petitioner without pay for an indefinite period is tantamount to discharge and thus falls within the purview of section 20 (1) (a).”The court ordered that the petitioner be reinstated with pay and all applicable benefits retroactive to June 12, 1996" which is the date the East Greenbush, NY Town Board unanimously voted to immediately suspend her.
"The court concludes that under the strictures of the 1990 amendment, Town Board actions as to a court clerk may be taken only with the advice and consent of the Justice or Justices to whom the court clerk is responsible."
The case was appealed to the Supreme Court, Appellate Division who:
..."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).”This time the court:
"From a review of the memoranda in support of the bill, it is clear that the legislative purpose behind the amendment to Town Law § 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".
"Therefore, based upon our interpretation of the legislative intent, we find that the action of the Town Board in suspending petitioner was appropriately annulled by Supreme Court as being in violation of Town Law § 20(1)(a)".
"ORDERED that the judgment is affirmed, with costs."An online blog, New York Public Personnel Law, wrote a summary of the decision in which they stated that “the Reno decision indicates that this 1990 amendment to the Town Law [Chapter 252, Laws of 1990] is to be strictly applied.”
So why does all but one board member, Councilman Richard Woodland, think they have the right to terminate a court clerk?
That brings me to the town board minutes of January 2, 2014, the day the court clerk was first appointed due to the retirement of the former court clerk.
According to the town board minutes, the court clerk was hired “for a 6 month interim period”.
Interim...a period of time between events. That’s a strange way to put an appointment!
What is more interesting is the fact that Supervisor Tyksinski was the only board member who voted “nay” for the appointment in January 2014. Why?
Given the b/s that has been going on lately with no bid contracts, it makes one wonder if Supervisor Tyksinski doesn’t have a “bucket list” called “People I need to pay back for helping to get me elected” because it sure sounds like Supervisor Tyksinski might have had someone else in mind for the job.
Sorry to say Supervisor Tyskinski, according to the courts, Town Law 20 is very clear...the choice of court clerks is definitely in the hands of the “Justice or Justices to whom the court clerk is responsible”. Doesn’t sound like there is any “wiggle room” on this no matter how hard you try to mince words.
Supervisor Tyksinski, the town board needs “to go in a different direction” all right. Do the right thing and reinstate the court clerk with back pay and avoid another lawsuit against the town...we have enough of them already!