Cioci v. Mondello, 1
| Decision Date | 04 February 1992 |
| Docket Number | No. 1,No. 2,1,2 |
| Citation | 581 N.Y.S.2d 703,153 Misc.2d 312 |
| Parties | In the Matter of the Application of Vincent F. CIOCI, Dolores Ehrlich and the Nassau/Suffolk Neighborhood Network, Inc., Petitioners, For a judgment, pursuant to Article 78 of the CPLR, v. Joseph N. MONDELLO, Gregory P. Peterson, and Donald P. DeRiggi, in Their Capacity as Members of the Board of Supervisors of the County of Nassau, the Nassau County Board of Supervisors, Peter T. King, in his Capacity as County Comptroller John Scaduto, in his Capacity as County Treasurer, and the County of Nassau, Respondents. ActionIn the Matter of the Application of Richard J. KORN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Thomas S. GULOTTA, as County Executive of the County of Nassau and Presiding Officer of the Nassau County Board of Supervisors and Joseph N. Mondello, Gregory P. Peterson, Benjamin Zwirn, Bruce Nyman, Lewis J. Yevoli and Donald DeRiggi as Members of the Board of Supervisors of Nassau County, Respondents. Action |
| Court | New York Supreme Court |
Neal Lewis, Massapequa, for petitioners in No. 1.
John W. Puderbach, Glenwood Landing, for petitioner No. 2.
Robert W. Schmidt, County Atty., Mineola, for respondents.
The above captioned cases represent two separate challenges to the procedures by which the Nassau County budget was adopted for the year ending December 31, 1992. By order of the Deputy Chief Administrative Judge, Hon. Joseph J. Traficanti, Jr., dated January 8, 1992, the undersigned was designated to preside over these two proceedings. On January 29, 1992 oral argument was held and all the matters were deemed fully submitted.
For purposes of this opinion the Court has treated the two proceedings together and arbitrarily designated the Cioci matter as Action No. 1 by virtue of priority in the index number and oral argument in Cioci preceded that in Korn.
Within the context of an Article 78 proceeding of the Civil Practice Law and Rules, petitioners seek a declaratory judgment that the Nassau County Budget for fiscal 1992 is invalid due to amendments made by the Board of Supervisors on December 16, 1991, which it is claimed improperly converted a line by line proposed budget into a lump sum budget. Petitioner also seeks an order in the nature of mandamus to compel respondents to adopt a proper budget and, further, a preliminary injunction to restrain the issuance of checks to "exempt" county employees except emergency service personnel.
The respondents have filed an answer with objections in point of law, affidavits and exhibits. Respondents contend that the changes made in the budget were reductions in various departments and are properly reflected in the budget as a line item.
The issue before the Court is whether a gross line item labeled "salary reduction" or the like sufficiently comports with the requirements of the Nassau County Charter ().
The petition in Korn seeks essentially similar relief as in Cioci, but with a different focus. Korn is an Article 78 proceeding under the Civil Practice Law and Rules wherein the petitioner seeks an order in the nature of mandamus directing the County Executive to resubmit a proper proposed budget for fiscal year 1992 and declaratory relief invalidating the proposed budget and vote thereon.
Respondents have filed their verified answer with objections in point of law, affidavits and exhibits. Petitioner has served a reply affidavit.
The narrow issue presented in Korn is the propriety of leaving blank spaces in the proposed budget, which the petitioner claims violated the Charter. Respondents argue that blank spaces mean zero (-0-) and is a proper entry (or nonentry) to use in the proposed budget.
Budgets represent a detailed estimate of the amount of expenditures of each department so "as to ascertain the amount of money which must be raised to conduct the affairs of the municipality for the ensuing fiscal year". 15 McQuillan, Municipal Corporations, § 39.39, p. 147 [3d rev ed]. "The budget must be prepared in the manner, and contain those items provided for and required by statute ...". 15 McQuillan, supra, § 39.40, p. 153.
In Matter of Korn v. Gulotta, 72 N.Y.2d 363, 534 N.Y.S.2d 108, 530 N.E.2d 816 (1988) the Court of Appeals on complaint of the same petitioner herein, invalidated the 1988 Nassau County Budget for failure of the proposed budget to include all surplus funds as estimated end of year cash balance. There, as a general statement and later with reference to the Nassau County Charter the majority opinion stated (72 N.Y.2d at 372-73, 534 N.Y.S.2d 108, 530 N.E.2d 816) "A budget is a statement of the financial position of the government, for a definite period of time, based upon an estimate of proposed expenditures and anticipated revenues (see, Matter of Collins v City of Schenectady, 256 App Div 389, 391 . The method by which public budgets are prepared is governed by the State Constitution and the applicable State statutes. The requirements contained in those documents are not particularly burdensome and permit the executive and legislative officials considerable freedom of action in implementing governmental operations and programs and providing for the revenues to fund them. The legal requirements they contain, however, are grounded in the general principles of regulation of all public conduct and they must be followed.
The governing statute in this case is the Nassau County Charter enacted by the State Legislature in 1936 and which contains provisions essentially the same as those found in the laws governing other municipalities (see, County Law § 355[1][g]; Town Law § 107[1][b]; Village Law § 5-506[1][c]. It provides that no later than the 15th day of September each year Nassau County department heads shall furnish to the County Executive estimates of revenue and expenditures for their department for the next fiscal year ( § 301). From this data the County Executive must prepare his proposed Budget for the ensuing fiscal year and submit it to the legislature no later than the second Monday in November ( § 302). The proposal must contain a statement of all estimated revenues exclusive of revenues derived from the tax levy ( § 302[1], a statement of estimated revenues from the tax levy (subd [2], a statement of estimated receipts from the sale of bonds and other borrowing (subd [3], a statement of the amount of the sinking fund available to pay bonded indebtedness (subd [4], and 'a statement of the estimated cash balance, after deducting commitments estimated to be outstanding at the close of the current fiscal year, in each fund, applicable to expenditures of the ensuing fiscal year' (subd [5].
The provisions of section 302 are mandatory."
In resolving the instant controversies the Court will discuss the present Korn proceeding first as an invalidation of the proposed budget would necessarily render academic the Cioci proceeding.
The applicable provision of section 302 of the Charter provides:
The halycon days of a surplus are gone at present. Petitioner Korn alleges that the proposed budget does not contain the estimated deficit as required under section 302(5) of the Charter. Petitioner focuses on four funds, the General Fund, Police Headquarters Fund, Police District Fund and County Road Fund as having blank spaces in the proposed budget of 927 pages at the four places where any deficit would otherwise be stated. 1
Respondents, by affidavit of Palmina Grella, an employee of the Nassau County Office of Management and Budgets, have established that the blank spaces mean zero (-0-) and this is an acceptable format for proposed budgets and has been used in Nassau County since 1943. The potential deficit claimed by petitioner was financed in 1991 by budget notes and revenue anticipation notes so that it is estimated that the fund balances would break even; that is, no surplus or deficit would exist in the 1992 budget. Pursuant to subdivision 7 of section 302 of the Charter the indebtedness and borrowing for 1991 is clearly set forth in the proposed budget.
Additional affidavits of the deputy budget directors of Rockland and Westchester Counties have been filed to make known that it is their practice and the common practice to use blank spaces instead of zeros (-0-) in the budget documents.
While the Court agrees with the petitioner that the use of "-0-" in lieu of a blank is preferable, the budget document custom and practice spanning nearly fifty years may not be lightly disregarded. Consequently, the Court finds that petitioner has not borne his burden of proof on any of the claims asserted. The newspaper articles lack probative value. Petitioner has failed to overcome the presumption that the elected public official charged with the duty to perform has performed that duty properly. 1 Jones on Evidence (6th ed.), § 331. Accordingly, the petition is dismissed and the rights of the parties declared as follows: the proposed budget is valid.
Each Charter is construed according to the language contained therein. Matter of Batemann v. Mayor, etc., 247 N.Y. 250, 160 N.E. 361 (1928). The budgetary process is designed to provide estimates and a public airing of the figures but it is not necessary for all items...
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