| Matter of LaLima v County of Suffolk |
| 2007 NY Slip Op 09396 [45 AD3d 845] |
| November 27, 2007 |
| Appellate Division, Second Department |
| In the Matter of Salvatore J. LaLima,Respondent, v County of Suffolk et al., Appellants. |
—[*1] Jakubowski, Robertson & Goldsmith, LLP, St. James, N.Y. (Mark Goldsmith of counsel),for respondent.
In a proceeding pursuant to CPLR article 78 to review determinations of the County ofSuffolk and the County of Suffolk Office of the County Comptroller dated November 21, 2003,and December 24, 2003, respectively, denying the petitioner's request for the payment ofretirement severance benefits of $98,920.90, and to compel the payment of such funds, theCounty of Suffolk and the County of Suffolk Office of the County Comptroller appeal from ajudgment of the Supreme Court, Suffolk County (Mullen, J.), entered October 3, 2006, whichgranted the petition, annulled the determinations, and directed them to pay the petitioner the sumof $98,920.90 and to report to the New York State Retirement System that the petitioner's salaryupon retirement was $170,000 per year.
Ordered that the judgment is affirmed, with costs.
On April 1, 2000, the petitioner was appointed to a three-year term as President of SuffolkCounty Community College (hereinafter the college) by resolution of the Board of Trustees(hereinafter the Board) and was given an annual salary of $135,000. His contract of employmentprovided, inter alia, that (1) any extension of the contract would be voted by resolution of theBoard, (2) his annual salary would be determined by the Board and agreed to by him, (3) hewould be provided 30 days vacation annually, (4) he would be paid additional fringe benefits asset forth in the Status and Benefits Handbook for Managerial-Confidential Employees of thecollege, and (5) at his retirement, he would be reimbursed for any unused vacation time at a rateof one day's pay for [*2]each vacation day accumulated andwould be reimbursed for unused sick days at a rate of one day's pay for every two sick daysaccumulated. By resolution dated March 14, 2002, the Board stated that it had extended thepetitioner's contract until October 31, 2003, and voted to raise his salary to $155,000 per year. Byresolution dated June 12, 2003, the Board stated that it had conducted an annual evaluation andsalary review and voted to raise the petitioner's salary to $170,000 per year, retroactive to April 1,2003. It noted that the last review was due on April 1, 2003, but it was delayed due to a searchfor a new president. On October 31, 2003, the petitioner retired.
By letter dated November 21, 2003, the appellants determined that the Board's vote raisingthe petitioner's salary to $170,000 per year was unauthorized, and concluded that the petitionerwas entitled to a retirement severance of $69,009.69, representing the balance of a salary of$160,024.02 plus reimbursement for benefits. By letter dated December 24, 2003, the appellantsfurther reduced the petitioner's retirement severance to $64,215.10 by recalculating thereimbursement for personal days.
The petitioner commenced the instant proceeding pursuant to CPLR article 78 to review theappellants' determinations and to compel the payment of $98,920.90 as his retirement severance,calculated pursuant to the petitioner's contract with the Board and the raises voted by Boardresolution. The Supreme Court granted the petition and directed the appellants to pay to thepetitioner the sum of $98,920.90, representing the balance of petitioner's annual $170,000 salaryand reimbursement for benefits, and to report to the New York State Retirement System that thepetitioner's salary at retirement was $170,000 per year.
The appellants contend that the Board's vote to raise the petitioner's salary to $170,000 peryear and to reimburse him for unused sick time was unauthorized under Laws of Suffolk County,chapter 750, article 1 (Management Salary Plan) § 750-6.2. They also argue that themeeting in which the Board voted for the raise was not properly noticed, that the vote wasunlawfully taken in executive session, and that verbatim minutes were not taken at the meeting.
The Supreme Court properly annulled the appellants' determinations. The Board wasauthorized by the Education Law and regulations promulgated thereunder to vote to raise thepetitioner's salary to $170,000 per year pursuant to his employment contract (seeEducation Law § 6306 [2] [the board of trustees shall appoint a college president]; 8NYCRR 604.2 [a] ["(t)he college trustees shall formulate and record the policies and proceduresof appointment and conditions of employment of the president and other professionaladministrative personnel"]). Contrary to the appellants' contention, Laws of Suffolk County,chapter 750, article 1 (Management Salary Plan) § 750-6.2, providing that Suffolk Countymanagers were to be paid a 3.5% raise in 2003, did not supersede either state law or theregulations promulgated thereunder (see Turnpike Woods v Town of Stony Point, 70NY2d 735, 737 [1987]; Municipal Home Rule Law § 22). The Supreme Court likewiseproperly annulled the appellants' determinations that the president was not entitled to bereimbursed for unused sick leave because the Board lawfully contracted to grant him sick leave(see Education Law § 6306 [2]; 8 NYCRR 604.2 [a]).
The appellants' alternative contention, that the vote to raise the petitioner's salary wasprocedurally improper, also is without merit. There is no support in the record for the claim thatthe meeting was not properly noticed as to time and place, pursuant to Public Officers Law§ 104 (1). Contrary to the appellants' contention, there is no statutory requirement thatnotice of the agenda of the meeting be given. In addition, the revised minutes of the meeting onJune 12, 2003, indicate that [*3]the vote was properly taken in thepublic session (see Public Officers Law § 103 [a]; § 105 [1]). Moreover, theappellants' contention that the vote was unauthorized because verbatim minutes of the meetingwere not taken is unavailing. Public Officers Law § 106 merely requires that a record orsummary of the action at a meeting be taken, and the record discloses that a summary of theaction was taken.
The appellants' remaining contentions are without merit. Schmidt, J.P., Rivera, Florio andBalkin, JJ., concur.