In the Matter of Town of North Hempstead, Appellant-Respondent,v.County of Nassau, Respondent-Appellant.BriefN.Y.September 10, 2014To Be Argued By: Robert F. Van der Waag Time Requested: 30 Minutes COURT OF APPEALS STATE OF NEW YORK APL-2013-00253 In the Matter of the Application of the TOWN OF NORTH HEMPSTEAD Plaintiff-Petitioner-Appellant-Respondent, For a Judgment Pursuant to Section 3001 and Article 78 of the Civil Practice Law and Rules, -against- COUNTY OF NASSAU, Defendant-Respondent-Respondent-Appellant. REPLY BRIEF FOR DEFENDANT-RESPONDENT-RESPONDENT-APPELLANT Of Counsel: Robert F. Van der Waag, Deputy County Attorney Appeals Bureau Chief David A. Tauster, Deputy County Attorney HON. CARNELL T. FOSKEY County Attorney of Nassau County Attorney for Defendant-Respondent- Respondent-Appellant One West Street Mineola, New York 11501 (516) 571-3056 Appellate Division, Second Department, Docket No. 2011-09018 Nassau County Supreme Court Index No. 6734/11 April 6, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES 1 PRELIMINARY STATEMENT 2 THE APPELLATE DIVISION DECISION CONFIRMING CHARGEBACK IS CERTAINLY CORRECT 3 THE COUNTY PROPERLY SET OFF 6 CONCLUSION 9 1 TABLE OF AUTHORITIES Statutes Education Law § 6302……………………………………………………..…passim Education Law § 6305………………………………………………………..passim 2 PRELIMINARY STATEMENT This Reply Brief is submitted on behalf of the County of Nassau and pursuant to this Court’s scheduling order. The County will not reiterate its former arguments which are exhaustively set out in its Main Brief before this Court and its briefs in the Appellate Division, and further confirmed in the briefs of the County of Suffolk and the New York State Attorney General. The Court is respectfully referred to those briefs. This brief will highlight a few points. First, the County concurs in the New York State Attorney General’s brief and notes that the state attorney general is in the best position to explain the state’s statute. The County also concurs in the brief amicus submitted by the County of Suffolk. The briefs of other Towns simply mimic the arguments by the Town of North Hempstead. Nothing new was added from the towns’ amicus briefs. There is no need for any interpretation of any statute. There is no legal ambiguity. Clearly, Nassau County, and any county, may and must charge back the educational expenses as described in the instant dispute and set out in the record on this appeal. This case involves a straightforward application of the Education Law’s mechanism for financing attendance at New York community colleges by nonresident students from counties throughout the State. The Appellate Division, 3 Second Department, correctly recognized that counties in New York state may charge back to their subordinate towns and cities the costs associated with residents attending the Fashion Institute of Technology (“FIT”) as nonresident students. The decision below should therefore be affirmed in this respect. THE APPELLATE DIVISION DECISION CONFIRMING CHARGEBACK IS CERTAINLY CORRECT This Court is respectfully referred to the County’s main brief and, in particular, to Point I thereof for the specific details of its rationale. Education Law §6305 (5) and §6305 (10) are concise, clear, unambiguous and consistent. There is no ambiguity either in its language or the legislative intent. There is nothing to interpret. The Town’s argument is circuitous and wrong. When a statute is clear you must simply follow it. Since there is no credible argument against the holding of two courts the Town is left to saying something that defies logic. It is an exercise in semantics and sophistry. Horn book law holds that when statute specifically provides for counties to charge back the costs of a Town’s resident to the town it must be applied. 4 The statute recites: “Amounts payable to such colleges by a county…shall be a general charge; provided however, that with respect to the amounts allocable to each community colleges a county may charge back such amounts in whole in part to the cities and towns in the county in proportion to the number of students…were attending each such college as non-residents…”Education Law, §6305 (5) Later, the state legislature added another provision. “… [T]he state shall reimburse each county which has issued a certificate of residence for any non-resident student…” §6305(10). By some crazy logic, the Town argues that subparagraph 10 has “: repealed” subparagraph 5. Neither facts nor law can leap to this conclusion. What the legislature directed, and confirmed over years, is that the “local municipality’ whose resident attends as a non-resident in another college shall pay those costs. This is logical. It is reasonable. And, it is fair. Now, municipalities, like the Town herein, may, if they choose, petition and lobby the state for a different conclusion; but, local governments can’t disregard the state mandate 5 unless and until they are changed. This Court is respectfully referred to the New York State Attorney General’s amicus brief where he, in short and concise fashion, affirms the Country’s rights under the state statute, and the Appellate Division holding. In particular candor the Attorney General states: “As a matter of policy, there is room for disagreement as to how the costs of community colleges in general, and FIT in particular, should be funded. The Legislature is the appropriate body to resolve such budgetary issues. The Legislature has enacted a provision applicable to all community colleges, authorizing counties to recover from cities and towns the payments…And the legislature has neither repealed nor limited the application of that chargeback provision as to students who attend FIT. The plain truth is sufficient to resolve the dispute presently before the Court.” State University amicus brief at 12. (emphasis added). To go beyond the forgoing, would give credence to an argument that does not exist. 6 THE COUNTY PROPERLY SET OFF The Appellate Division erred in holding that the County may only charge back with a new local enactment specifically addressed to FIT. This Court is referred to the County’s main brief for the complete detailed reasons why a new enactment is unnecessary. The Appellate Division further erred in holding that a county may not set off the amount of nonresident tuition owed to the county against sales tax revenues owed to a town or city. Both modifications are without any legal citations or authority. The modification is wrong. Education Law § 6305 provides, without limitation, that community colleges may charge back to a county the costs associated with its residents attending said college as nonresident students. That statute further provides that said county may, at its discretion, charge back those costs to its subordinate towns and cities in proportion to the number of residents of said towns and cities who attended the college. The Fashion Institute of Technology is, indisputably, a community college, and as such there is no restriction on a county’s ability to charge back to a subordinate town or city for nonresident tuition. (See also the NYS Attorney General’s brief) The Town of North Hempstead (the “Town”) attempts to argue that, notwithstanding the plain and unambiguous language of Education Law § 6305, 7 that it either does not apply to FIT, or that it only applies to FIT’s two-year associates degree programs. There is nothing in the Education Law which suggests that chargeback authority is limited to particular degree programs at community colleges. Furthermore, while the Town is correct that Education Law § 6305(10) ostensibly provides that the State will reimburse counties for FIT costs, thereby obviating the need to charge back, this provision has been abrogated by the State. As such a county may, in fact, charge back to towns and cities for FIT nonresident tuition in the absence of such state reimbursement, and the decision below should therefore be affirmed in this respect. While the Second Department acknowledged the general framework by which counties may charge back for FIT nonresident tuition, it incorrectly held that such chargebacks may only occur pursuant to a local enactment. There is no language in Education Law § 6305 which suggests that it requires some form of local legislation to authorize a county treasurer to make such chargebacks. Moreover, even if there was such a requirement, Nassau County adopted legislation in 2003 which is broad enough to authorize FIT chargebacks, even if it did not begin charging back for such tuition until 2010. The County Treasurer had the authority to charge back to the Town for FIT nonresident tuition, and as such the decision below should be reversed in this respect. Again, there is no reason or authority to 8 restrict the County in this regard. Similarly, the Appellate Division also erroneously held that the County could not employ the common law right of set off against the sales tax distributions owed to the Town. It is settled law that municipalities may set off a debt owed against money of a debtor in the municipalities possession, and the State Comptroller has already recognized, in a 1988 opinion, that this right extends to setting off against sales tax revenues. Moreover, as FIT nonresident tuition was readily calculable at the time the County applied the set off, there is no support for a contention that the Town’s debt was unliquidated. The County was fully authorized to set off the Town’s nonresident tuition debt against the sales tax distribution, and as such the decision below should be reversed in this respect. In summary, there is no doubt that the County had the authority to charge back the FIT costs to the Town. The Education Law provision is absolute and does not require any additional act by the County. Furthermore, the County had adopted an appropriate resolution and certainly no further legislation (County’s main brief at 22, et. seq.). The Order of the Appellate Division should be affirmed as to the absolute right of the County to charge under the Education Law and modified to the extent that the Decision required any additional act by the County. 9 CONCLUSION For the foregoing reasons, the decision of the Appellate Division, Second Department, should be 1. Affirmed, to the extent that it held that a county may charge back to towns and cities the full cost of nonresident tuition for all of FIT’s degree programs; 2. Modified, to reflect that the County Treasurer was empowered to charge back for FIT tuition without needing further Legislative authorization, and; 3. Modified, to reflect that County was entitled to set off the Town’s debt related to nonresident FIT tuition against the sales tax distribution owed to the Town but possessed by the County. Dated: Mineola, New York April 6, 2014 Respectfully Submitted, HON. CARNELL T. FOSKEY County Attorney of Nassau County Attorney for Defendant-Respondent- Respondent-Appellant. One West Street Mineola, New York 11501 (516) 571-3056 By: ______________________________ Robert F. Van der Waag Appeals Bureau Chief Deputy County Attorney David A. Tauster Deputy County Attorney Of Counsel