In the Matter of Town of North Hempstead, Appellant-Respondent,v.County of Nassau, Respondent-Appellant.BriefN.Y.September 10, 2014COURT OF APPEALS STATE OF NEW YORK To be submitted In the Matter of Town of North Hempstead, Appellant- Respondent v County of Nassau Respondent - Appellant BRIEF FOR AMICUS CURIAE ASSOCIATION OF TOWNS OF THE STATE OF NEW YORK Nassau County Clerk's Index No.2011-09018 Second Department Appellate Division Docket No. 6734/11 Dated: July 23,2014 Association of Towns of the State ofNew York 150 State St. Albany, NY 12207 Tel: (518)465-7933 Fax: (518)465-0724 Sarah Brancatella, Associate Counsel Table of Contents Table of Authorities ............................ .-........................................................................ ii Questions Presented .................................................................................................. · ... iii Preliminary Statement and Interest of Amicus ........................................................... 1-3 Argument ..................................................................................................................... 3-8 The language of the statutes, amendments to Education Law and a history of the community college chargeback system all demonstrate that the Legislature did not intend to allow counties to charge back non-resident student FIT- related costs to towns ................................................................... 3-8 <:::onclusion ................................................................................................................... 8 Table of Authorities Cases Riley v County of Broome, 95 NY2d 455 (2000) ................................................................................................... 4 Statutes County Law § 150-a .................................................................................................... 5 Education Law§ 6301 (2) ........................................................................................... 1 Education Law§ 6303 (3) ........................................................................................... 2 Education Law § 6305(2) ............................................................................................ 1 Education Law§ 6305 (5) ........................................................................................... 1 Education Law § 6305 (1 0) ......................................................................................... 2, 6,8 Other Authorities Fashion Institute of Technology http://www.fitnyc.edu/1839.asp (accessed July 21, 2014) ............................................................................................................................ 2 Letter from SUNY, March 22, 1955, Bill Jacket, L 1955, ch 769 .............................. 6-7 McKinney's Cons. Laws ofN.Y., Book 1, Statutes§ 124 .......................................... 4 Revised Memorandum of Nancy L. Zimpher, Chancellor, dated September 12, 2012 to Members of the Board of Trustees of the State University of New York ..................................................................................... 1,7,8 ii QUESTION PRESENTED When a student that lives outside of New York City attends FIT, does Education Law authorizes the student's home county to charge back certain costs to the student's home town? lll Preliminary Statement and Interest of Amicus Community colleges are financed through a three partnership - the state, student tuition and local sponsors (cities, counties and certain school districts have the authority to become a local sponsor) all provide a pmiion of the costs. Under the community college chargeback system, when a student attends a community college outside his or her home county (hereinafter referred to as the "non-resident student"), the community college may charge back a part of the local sponsor's costs to the non-resident student's home county (see Education Law§ 6305[2]). In turn, the non-resident student's home county has the option of passing along those costs or a portion of those costs to the student's town or city of residence (see Education Law§ 6305 [5]). The Fashion Institiute of Technology ("FIT") is uniquely situated in the community college system. Originally established as a community college in 1951, FIT expanded in 1975 to include bachelor degree programs and again in 1979 to add master's degrees (see Nancy L. Zimpher, Chancellor, Community College Chargeback Report to SUNY Board of Trustees [September 12, 2012], available at http://www.suny.edu/about/leadership/board-of trustees/meetings/webcastdocs/Community%20College%20Chargeback%20Repor t.txt SUNY Trustee report, [accessed July 22, 2014]). Despite the fact that community college is defined under Education Law§ 6301 (2) as an institution providing two- year programs, and Article 126 of Education Law discusses I_ community colleges in terms of being two years (see e.g. Education Law § 6303 [3] "The curricula in community colleges shall be designed to serve the needs of students who seek two years of post secondary education and whose needs would not ordinarily be met by the usual four-year college curriculum"), and the fact that the Legislature enacted Education Law § 6305 (1 0) to eliminate the chargeback system for FIT, respondent maintains that counties are authorized to charge back for FIT costs, including those relating to the bachelor's and master's programs, to towns. Towns have no authority to become a local sponsor of a community college (see Education Law§ 6301 [3]), and thus have no ability establish community colleges or control or say any aspect of the institution, such as tuition. Various counties across New York have adopted respondent's interpretation of the chargeback system and towns are being required to fund programs over which they have no control or authority to control the costs. The community college chargeback system is something that has become of increasing concern to the Association of Town's membership as more students opt for two-year degrees in light of increasing tuition costs at four-year institutions, and towns face significant budgetary concerns. Even limiting the issue to FIT and its bachelor's and master's programs, according to the school's web site, approximately 23percent of its students come from areas in New York State outside of New York City, and 2 approximately 36 percent of their students are in masters or bachelors programs (see Fashion Institute of Technology http://www.fitnyc.edu/1839.asp [accessed July 21, 2014] ). This is a significant number of students who seek higher education outside of their home counties at FIT; however, respondents would have this done at the expense of towns and cities. Therefore, the Association of Towns of the State of New York, on behalf ofthe approximate 900 towns it represents, urges this court to adopt the town of North Hempstead's interpretation of Article 126 of Education Law. Argument The language of the statutes, amendments to Education Law and a history of the community college charge back system all demonstrate that the Legislature did not intend to allow counties to charge back non-resident student FIT- related costs to towns. The town of North Hempstead and the accompanying amici briefs submitted by the town ofislip and the city of Long Beach clearly articulate why the plain language ofthe Education Law statutes at issue support an interpretation that does not permit counties to charge back non-resident student charges to towns and cities for FIT costs and why, at the very least, counties are not authorized to charge back costs related to FIT baccheloreate and masters degree programs. The Association of Towns also maintains that a plain reading ofthe statute supports the interpretation advanced by the town of North Hempstead. Although the language 3 ofthe statutes is clear, the court should not ignore legislative history when discerning legislative intent, and "[a]lso pertinent ... is 'the history of the times, the circumstances surrounding the statute's passage, and attempted amendments'" (Riley v County of Broome, 95 NY2d 455,463-64 [2000], citing McKinney's Cons. Laws ofN.Y., Book 1, Statutes§ 124, at 253). In doing so, it becomes even more readily apparent that the Legislature did not intend to give counties unilateral authority to impose FIT community college charges on towns when examining the context in which the chargeback system was created and the changes in the landscape surrounding it. A. Change in the makeup for county government One of the biggest changes to take place since the inception of the community college chargeback system that should be considered when determining legislative intent is the option to change the makeup of county government. In 1955, when the community college chargeback system expanded from six schools to all community colleges in New York, 10 total including FIT, all counties in New York were governed by a board of supervisors comprised of elected supervisors fl·om cities and towns within that county. By having elected town officials in county government, the county board was aware of not only the county budget and resources, but also the budgets and resources available to towns within the county. Thus, the board was in an informed position to determine what 4 entity could bear the cost or what portion of the chargeback towns could afford. It was not untill968 when County Law§ 150-a was adopted that counties could establish a county legislature where the elected officials had no nexus to or experience in town government. Though many counties kept the board of supervisors model instead of switching to a county legislature, the option to switch to a county legislature meant and means that bodies with limited to no understanding or knowledge oftown finances, budgeting and expenses are deciding to pass along the cost of a community college chargeback without any regard for whether the town has the resources to do so. This is particularly impmtant today as municipalities across New York State are trying to operate under a 2 percent tax cap, thereby giving counties every incentive to charge back the entirety of the local sponsor's share to towns and cities regardless of who is best able to absorb those costs. The change in the makeup of county government is also significant because, under Education Law, towns have no authority to become a local sponsor and therefore have no say in the operating or establishment of a community college. When counties were exclusively run by boards of supervisors, towns had a voice through the elected supervisors sitting on the county board on whether a county should become a local sponsor and help establish a community college. Thus, when the community college chargeback stmted, towns, through the town 5 supervisor, had some input and influence on the running of community colleges and the allocation of non-resident student chargebacks. However, the county legislature model of government rendered the voice of towns silent in counties not run by a board of supervisors and turned the chargeback system into what is essentially an unfunded mandate imposed on towns by the county. Notably, not all counties choose to charge back community college costs for non-resident students; however, the counties identified by the comptroller's office in the SUNY Board of Trustee's 2012 Community College Chargeback report that chargeback community college costs to towns and cities all have county legislatures, not a county board of supervisors. In these counties, towns have no opportunity to operate a community college and control its costs, and they have no say in detennining whether the town and its residents should bear the cost of a student attending school outside of the county. In order to address the inequity that exists in light of the change in county government, the Legislature amended the system through the enactment of Education Law§ 6305(10) so that the county would be reimbursed by the state for FIT costs and not unfairly burden its towns and cities. Respectfully, the Legislature did not intend to create an unfunded mandate through the community college chargeback system. Rather, it is, and always has been, simply a system to make community college afforable and accessible to a wider variety of students so that non-resident students are not charged double tuition (see Letter from SUNY, 6 March 22, 1955, Bill Jacket, L 1955, ch 769; "Student choice is central to the mission of community colleges and the chargeback system ensures that students and New York's 62 counties all share and contribute to keeping these colleges affordable" [20 12 SUNY Community College Chargeback Report]). B. Change in the community college system Since the community college chargeback system became applicable to all New York State community colleges other significant changes that should be considered when determining legislative intent include the scope of the community college system and the programs available at FIT. The seminal community college chargeback system was limited to six schools, and when the Legislature expanded it in 1955, it encompassed 10 schools total (see Letter from SUNY, March 22, 1955, Bill Jacket, L 1955, ch 769). As of2012, that number has quadrupled, and 42 counties directly sponsor community colleges (see 2012 SUNY Community College Chargeback Report). Accordingly, the chargeback system is significantly larger than originally anticipated, and the costs imposed on towns have increased. Additionally, at the time the community college chargeback system was created, FIT was not authorized to provide bachelor or master's degrees; that required special legislation in 1975 and 1979 (see 2012 SUNY Community College Chargeback Report). The state and Legislature recognized FIT's unique placement in the community college system and that the master's and bachelor programs did 7 L not fit within the charge back system. As a result, the Legislature enacted Education Law§ 6305(1 0) requiring the state to bear the cost of FIT-related chargebacks, and the state did so through 2002 (see 2012 SUNY Community College Chargeback Report). The fact that the state has not lived up to this funding mandate is of no significance; if the Legislature intended to eliminate the state FIT funding requirement, it would have simply repealed Education Law § 6305 (10). Thus, when considering that masters and bachelor programs were not available at FIT when the community college chargeback system was created and the fact that the Legislature created an entirely separate system for FIT, it is clear that the Legislature did not mean for FIT and its higher education programs to be included in the chargeback system. Conclusion For all of the reasons outlined above, and the reasons outlined in the town of North Hempstead's brief, the Association of Towns of the State of New York respectfully submits that the community college chargeback system does not apply to FIT or its bachelor and masters programs. Respectfully submitted, Sarah B. Brancatella 8