We understand that might be your opinion, Mr. Tyksinski, but unfortunately, the State Comptroller's Office has 100% control of the NYS Retirement Fund 100% of the time; that sort of puts him in the driver's seat.
Not only did Ms. Fairbrother collect this outrageous amount of money for her town bookkeeper job, but in December 2008, she also collected $71,000 of overtime that according to a 1999 Town Board Resolution she was not entitled to.
To top it all off, the 1999 board resolution was adopted allowing for her to take over the added job of the town's payroll functions; and, she was given a raise at that time to take on those added responsibilities.
But then...sometime prior to December 2008, Earle Reed took the payroll function away from Ms. Fairbrother absent town board approval and in violation of Town Law § 52:
Supervisor.We say sometime because no one in the town offices knows, or will say, when that happened. The town clerk has certified that there is no resolution for the transfer of job functions between departments and she has no idea when the payroll was transferred to Personnel Technician Barb Aiello. However, one thing is for sure, Ms. Fairbrother still receives the same pay as when she was doing the payroll, with a 3% raise added each year.
6. Provide for and direct the internal organization and reorganization within individual town departments or agencies where consistent with applicable law, provided, however, that in any event, permissible transfers of functions between departments or agencies shall be subject to approval of the town board.
Concerned Citizens did some research and found STATEMENT OF ACCRUED PAYMENTS AND LEAVE CREDITS, a form that needs to be filled out by the town, and sent to the State Comptroller. The top of the form says [all in caps]:
NO RETIREMENT BENEFITS WILL BE PAID TO THE EMPLOYEE LISTED ABOVE UNTIL THIS FORM IS COMPLETED AND RETURNED TO THE ABOVE ADDRESS. PLEASE DO NOT FORGET TO SIGN AND DATE THE BACK OF THE FORM.The back of the form has AUTHORIZED SIGNATURE, DATE, TITLE and TELEPHONE NUMBER. If no one in town knew she retired, who signed this form?
We also found an Employer's Guide put out by the NYS Comptroller's Office. On page 123 it says:
For payroll purposes, the member's last day on the payroll must precede the day of retirement. For example, if the member is retiring on December 31, the last day the member is able to work for pay is December 30.Ms. Fairbrother supposedly retired on Friday, June 1, 2007, and according to Attorney Green's invoices, one day after she met with him to discuss "accounting/bookkeeping concerns". The week of her retirement, she worked 7 hours plus overtime Monday through Thursday. Then on Friday, her date of retirement, she put in for 7 hours of sick time. The following week she worked 7 hours plus overtime every day except Wednesday when she worked 3 hours and also put in for 4 hours of vacation. All together her paycheck for the two (2) week pay period inclusive of her retirement date included 59 regular hours, 5 overtime hours, 4 vacation hours and 7 sick hours.
In 2007, there was only one (1) town board meeting on May 9th that would have been a little less than a month prior to her retirement. No mention of her impending retirement at that meeting. The next meeting was on June 13th, after her retirement, and there again no mention of her retirement and no resolution to re-appoint Ms. Fairbrother. According to her timesheets, she either worked, took vacation or used sick time along with overtime everyday prior to the June 13th town board meeting and continued to log hours worked every day thereafter.
Question is...since there is no resolution for her retirement and she has not formally been re-appointed is she retired and allowed to collect her pension or not?
The Town bookkeeper is an appointment of the town supervisor and she serves at the pleasure of the town supervisor. She does not have to take a civil service test to get the job, in fact, a town supervisor can appoint his spouse if he so chooses. Because Ms. Fairbrother was appointed, she does not qualify as an employee under the definition of the Fair Labor Standards Act. Of course, that would be what we found in an Opinion Letter of the State Comptroller, the one who is, according to Mr. Tyksinski, only right 50% of the time.
In 2008, at the request of Earle Reed and Attorney Gerald Green, Attorney Michael Sciotti, from Hancock and Estabrooke in Syracuse, billed the town $2,000 for an opinion letter outlining why he felt that Ms. Fairbrother is entitled to the overtime [that would be right after former Town Attorney Green billed the town for two years worth of research on the matter to the tune of approximately $3,400].
According to Attorney Sciotti's page on the firm's website, he is "the leader of the Firm's Labor and Employment practice group"; his page also lists one of his areas of practice as the Fair Labor Standards Act. According to his opinion, Ms. Fairbrother is due overtime under the Fair Labor Standards Act because:
1. she does not regularly direct the work of two or more employeesNot bad pay for someone who supposedly, according to Attorney Sciottit, has no formal training who merely does the work she is told to do with little or no input as to how to do it, eh? We bet that Earle and Jerry "forgot" to tell Attorney Sciotti that Ms. Fairbrother holds an appointed position of an elected official...thus making her exempt according to the Oneida County Civil Service job description we were handed when we FOILed it from the town clerk.
2. she does not have the authority to hire and fire, etc.
3. her input has been given little input over the years as to hiring and firing
4. she performs rather "standard" day to day activities and does not appear to customarily and regularly exercise discretionary power
5. she has no advanced degree
6. she does not provide work in a specialized area
7. her work was, and still is, rather routine in nature
On June 25, 2010, Concerned Citizens filed a lawsuit in the Oneida County Clerk's office regarding the 2008 overtime payment of $71,000.
On July 8, 2010, Concerned Citizens filed a Notice of Claim with the Town Clerk regarding the "quiet" retirement of Ms. Fairbrother.
We would love your opinion on one or both subjects [overtime/retirement] either by commenting on this blog or emailing us.
Or you can contact the town supervisor's office by dialing (315)733-7500 x2332 or sending him an email. We are sure he would like to hear your thoughts.
ALBANY, N.Y. (April 1, 2010) - Attorney General Andrew M. Cuomo today announced that his investigation into the manipulation of salary and overtime payments that leads to inflated pensions at the expense of taxpayers, known as “pension padding” or “pension spiking,” has expanded to include more than two dozen additional localities across New York state....[more]
The Attorney General’s office urges individuals with knowledge of any questionable pension padding practices to contact the Attorney General’s Public Integrity Bureau by telephone at 212-416-8090 or by email.