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Payroll Games: Brown Administration Violating Civil Service Law?
by Geoff Kelly
Since the middle of last December, the City of Buffalo’s human resources commissioner has refused to sign off on payroll for five employees in the city’s Department of Public Works, because she believes Mayor Byron Brown’s administration is flaunting state civil service law by keeping those employees on provisional status longer than the law allows.
As a result, those employees have had to file a complaint each pay period in order to receive a paycheck for their work, following a procedure prescribed by the city’s top attorney, Timothy Ball.
Now, as many as 126 firefighters are about to be in the same boat, according to a letter sent last Friday by Buffalo Comptroller Mark Schroeder to the commissioner of the New York State Department of Civil Service.
Schroeder says that Human Resources Commissioner Patricia Folts will not certify payroll for those firefighters for the same reason that she stopped certifying payroll for the five public works employees: The Brown administration is allowing the employees languish on civil service lists, waiting for promotion or permanence, longer than state law allows.
Under state law, Folts is obligated to de-certify a payroll if she determines the city is in violation of civil service law. But state law also requires a municipality to pay employees for the work they do, regardless. Schroeder’s city auditor, meanwhile, risks a misdemeanor for issuing a check despite Folts’s refusal to certify the payroll.
So, when the issue first arose back in December, Schroeder sought an opinion from Ball, the city’s corporation counsel. Ball advised that Schroeder’s office should:
• “furnish claim forms” to the public works commissioner, which the employees in question would fill out and return to the public works commissioner, who would forward them to the comptroller’s office;
• “pay said claims in the appropriation or fund to which it should be properly charged”;
• forward the claims to the Common Council for its approval “only in the event that the City Auditor refuses to approve said claim.”
Ball also recommended that the five employee in question “be either permanently appointed to, or immediately removed from, the positions to which they were provisionally appointed.”
Eight months later, that hasn’t happened for the five workers. And now a slew of firefighters are about the share their curious predicament. Why aren’t these city employees being made permanent or promoted?
Schroeder allows that Buffalo is a big city with many employees, and a big budget to oversee, and that there are inevitably miscommunications and delays in the administration of such an enterprise.
“And then there are strategies,” Schroeder said, leaning hard on that last word.
The comptroller would not elaborate on those strategies and what they are meant to achieve, but we’ll offer some speculation informed by discussions with some experts on hiring and firing in Buffalo’s City Hall.
(Speculation is all we can offer, as calls to Folts, the human resources commissioner, and to Ball, the city attorney, went unanswered. We also called Dan Cunningham, president of the firefighters union, who had just left for vacation but called from the Philadelphia airport to confirm what Schroeder wrote and that no firefighter had been rpmotoed in two years.)
The Brown administration won’t promote these firefighters and public works employees because they want to fill the jobs with other candidates who didn’t score as well on the appropriate civil service exam. Under state law, candidates are “reachable” for promotion on a list only if they score in the top three on a civil service test. There are complicated ways of circumventing that basic law, but the tricks will only take you so far down the list of qualified candidates: If the person you want to hire, because of political connections or favors rendered, is too low on the list, he or she remains “unreachable.”
So what do you do?
Karla Thomas, the former human resources commissioner whom Brown fired amid a scandal, explained that you do nothing. You let the people you don’t want to promote sit on the list, in limbo, until the list expires and the civil service test is administered again, creating a new list. She told us that she’d seen that strategy practiced when she was with the Brown administration, and she believes part of the reason her old ally Byron Brown turned on her is that she refused to accommodate chicanery. Thomas said she suspects her successor, Folts—who came to City Hall from developer LP Ciminelli, where she was vice president for human resources—has decided to protect herself, recognizing she could be set up to take the same sort of fall that Thomas took.
Indeed, sources at City Hall say that the mayor’s office is unhappy with Folts and are pressuring her to resign. (The city charter seeks to protect the human resources commissioner from political pressure: Folts’s term is six years, and she can only be fired for cause.) We are told that Folts is also unhappy but will only resign if the Brown administration buys out her contract.
Schroeder said that 15 new names crossed his desk on Tuesday, to be added to the list of city employees who must file claims every pay period in order to be compensated for their work. He expects more are coming. He turned to the state Department of Civil Service for advice on how to proceed, he said, because he foresaw no changes coming from the Brown administration.
In the meantime, he said he will personally sign off on the payroll gimmick, in order to ensure that these city workers continue to be paid and to protect his city auditor from the possibility of a misdemeanor charge, should the gimmick prove to be illegal.blog comments powered by Disqus
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