Sedacca v. Mangano
Sedacca v. Mangano
Opinion of the Court
OPINION OF THE COURT
The question presented by this appeal is whether the Nassau County Executive has the authority to terminate the commissioners of the Nassau County Assessment Review Commission (ARC) in the absence of cause, prior to the expiration of their fixed, statutory terms. We conclude that he does not.
Under Real Property Tax Law § 523-b, the State Legislature authorized Nassau County to establish the ARC for the purpose of “reviewing and correcting all assessments of real property” (RPTL 523-b [2] [d]). The ARC was created “as an alternative” to a board of assessment review, which is maintained by other local governments under RPTL 523 to fulfill the same purpose (RPTL 523-b [1]). The purpose of the statute was to combat the growing number of property tax grievances that were being filed and to increase the accuracy of the assessments, thereby avoiding having to make refunds and interest payments on improperly assessed parcels (see Mem of Senator Dean G. Skelos in Support of L 1998, ch 593, 1998 NY Legis Ann, at 373). Section 523-b allowed the ARC to function year round, as opposed to the previously existing Board of Assessment Review that met for three months out of the year, and also increased the number of commissioners in the hope that more tax grievances would be “resolved without court involvement and in a more timely manner” (id.). The Nassau County Legislature adopted RPTL 523-b as section 6-40.1 et sea. of the Nassau County Administrative Code.
On December 24, 2009, the outgoing Nassau County Executive appointed six ARC commissioners, including the three petitioners herein, to fill vacancies.
Eight of the nine commissioners responded to the County Attorney, requesting that he provide them with legal representation under Nassau County Charter § 1102 and asking for an opportunity to be heard by the County Executive.
Petitioners commenced this combined declaratory judgment action/CPLR article 78 proceeding seeking an order declaring that the County Executive does not have the power to remove the commissioners during their terms absent cause, enjoining respondents from taking any such action and directing that petitioners are entitled to reasonable attorneys’ fees incurred for their independently retained private counsel. Supreme Court denied the petition and, in effect, dismissed the proceeding, finding that the provision governing petitioners’ removal—Nassau County Charter § 203—contained no requirement of cause for termination. The court also denied petitioners’ request for attorneys’ fees. (27 Misc 3d 414 [2010].)
The Appellate Division modified solely to declare that the County Executive has the authority to remove the ARC commissioners from their offices prior to the expiration of their statutory terms in the absence of cause (78 AD3d 716 [2d Dept 2010]). The Court found that the language of Nassau County Charter § 203 was clear and unambiguous in requiring only that appointees be given notice of the reasons why they were being removed and provided with an opportunity to be heard. The Court found it significant that the County Charter did not explicitly state that appointees were removable only for cause. This Court granted petitioners leave to appeal and we now modify.
The Nassau County Charter vests the County Executive with authority to appoint members of county boards and commissions, subject to approval of the County Legislature (see Nassau County Charter § 203 [1]). Concomitantly,
*614 “[t]he County Executive may at any time remove any person so appointed; provided that in the case of members of boards and commissions appointed for definite terms, no removal shall be made until the person to be removed has been serv[ed] with a notice of the reasons for such removal and given an opportunity to be heard, publicly if he or she desires, thereon by the County Executive. The decision of the County Executive shall be final” (Nassau County Charter § 203 [1]).
Although RPTL 523-b does not set forth any procedure for the removal of commissioners, the statute demonstrates the legislative intent to protect the ARC from political influence. It is evident that the fixed, staggered terms of office along with the requirement that all of the commissioners must not be members of a single political party, are designed to promote stability of membership and political diversity. Notably, the five-year term of office exceeds the length of the County Executive’s own. This design may frustrate the most recent expression of the electorate’s mandate, but it is meant precisely to avoid a wholesale change of membership of the ARC upon the installation of each successive administration.
When Nassau County Charter § 203 is read in light of the purposes of RPTL 523-b, the Charter provision does not convey the “plain” meaning that respondents attribute to it. Section 203 (1) refers specifically to “members of. . . commissions appointed for definite terms,” and makes clear that, when those members are removed, “reasons for such removal” must be provided. “Reasons,” in this context, can reasonably be read as a synonym for “cause”: thus, section 203 permits removal of commissioners serving fixed terms for cause, but not otherwise. Accordingly, we find that RPTL 523-b and Nassau County Charter § 203 are not incompatible and read them together to accomplish the clear legislative intent.
In addition, although the commissioners, as county employees, are not protected by the Public Officers Law (see e.g. Public
Removing the commissioners without cause under Nassau County Charter § 203, as respondents urge, would frustrate the legislative intent by nullifying the requirements of the RPTL and rendering the staggered statutory terms of office in RPTL 523-b superfluous. Under these circumstances, the commissioners are not essentially at-will employees, subject to termination for any reason whatsoever.
Petitioners’ argument that they are entitled to attorneys’ fees, however, was properly rejected. The County is required to “provide for the defense” of an employee involved in a civil action arising out of an act or omission that occurred during the scope of his or her employment (see Nassau County Administrative Code § 22-2.8 [2] [a]). Where, as here, the employees commenced the action, there is no obligation on the part of the County to pay for their “defense.” Nor does the Administrative Code otherwise obligate the County to bear responsibility for the commissioners’ legal fees.
Accordingly, the order of the Appellate Division should be modified, without costs, by granting judgment declaring that in the absence of cause, the County Executive does not have authority to remove commissioners of the Nassau County Assessment Review Commission prior to the expiration of their statutory terms, and remitting to the Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.
Order modified, etc.
. Petitioners were not appointed for full terms, but to fill the remaining portions of existing terms.
. One of the nine commissioners was retained by the County Executive and two others ultimately decided to resign.
. The three remaining commissioners accepted the representation of special counsel and were permitted to intervene in this action at Supreme Court. The intervenors are not parties to this appeal.
Reference
- Full Case Name
- In the Matter of Dolores Sedacca v. Edward P. Mangano, County Executive of Nassau County
- Cited By
- 10 cases
- Status
- Published