In the Matter of Town of North Hempstead, Appellant-Respondent,v.County of Nassau, Respondent-Appellant.BriefN.Y.September 10, 2014Date Completed: March 18,2014 ([uurt uf J\pp£als FOR THE STATE OF NEW YORK 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, DeJendant-Respondent-Respondent-Appellant. AMICUS CURIAE BRIEF ON BEHALF OF THE COUNTY OF SUFFOLK DENNIS M. BROWN, Suffolk County Attorney COUNTY OF SUFFOLK Attorneys for Amicus Curiae The County of Suffolk H. Lee Dennison Building 100 Veterans Memorial Highway, PO Box 6100 Hauppauge, New York 11788-0099 (631) 853-4049 By: CHRISTOPHERA. JEFFREYS, Assistant County Attorney Echo Appellate Press, Inc.· 30 West Park Avenue· Long Beach, New York 11561 • (516) 432-3601 Printed on Recycled Paper TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................ .ii INTEREST OF THE AMICUS CURIAE ............................................................................... 1 IT IS WELL ESTABLISHED THAT FASHION INSTITUTE OF TECHNOLOGY IS A COMMUNITY COLLEGE IN THE STATE OF NEW YORK ................................... 6 SUFFOLK COUNTY IS ENTITLED TO REIMBURSEMENT OF ALL MONIES PAID FOR NON-RESIDENT STUDENT ATTENDANCE AT FASHION INSTITUTE OF TECHNOLOGY FROM THE TOWNS IN WHICH THE STUDENT RESIDE .................................................................................................................................. 9 CONCLUSION ....................................................................................................................... 17 CERTIFICATION ..... ; ........................................................................................................... 18 TABLE OF AUTHORITIES STATE CASES Amato v. State, 131 Misc. 2d 1049, 502 N.Y.S.2d 928 (Ct. Cl. 1986) ........................... · .. ···· .. · .......... 6, 7 County of Suffolk v. King, 18 A.D.3d 1010, 794 N.Y.S.2d 695 (3d Dep't 2005) ............................................. 11, 13 Matter of Gallagher v. Regan, 42 N.Y.2d 230 .............................................................................................................. 15 Matter of Heron v. City of Binghamton, 307 A.D.2d 524 ............................................................................................................ 15 Jackson v. Board of Education, 30 A.D.2d 57,812 N.Y.S-.2d 91 (1st Dep't2006) .......................................................... 7 Jackson v. State of New York, 2002 WL 3419829 (Sup. Ct., New York County 2002) .................................... 7 In re Lawyers Title & Guaranty Co., 179 Misc. 46, 37 N. Y.S.2d 239 (Sup. Ct., Bronx County 1942) ................................. 14 Moore v. Mausert, 49 N.Y. 332 (1872) ....................................................................................................... 14 Mostaghim v. Fashion Institute of Technology, 2001 WL 1537544 (S.D.N.Y. 2001) .............................................................................. 7 Matter of New York Public Interest Research Group v. Dinkins, . 83 N.Y.2d 377 .............................................................................................................. 15 Pataki v. New York State Assembly, 4 N.Y.3d75, 824 N.E.2d 898, 791 N.Y.S.2d458 (2004) ....................................... 11,13 Town of North Hempstead v. County of Nassau, 102 A.D.3d 800, 958 N.Y.S.2d 414 (2d Dep't 2013) ................................................... 16 STATE STATUTES & CODES 1994 N.Y. Lawsch. 170 .................................................................................................... 10 8N.Y.C.R.R. § 602.12(g) ............ · ...................................................................................... 12 ii 1979 Session Laws 1773 ...................................................................................................... 6 Matter of Lamb v. Town of Esopus, 35 AD3d 1004 ......................................................... 15 111 INTEREST OF THE AMICUS CURIAE The within brief is submitted on behalf of the County of Suffolk, as amicus curiae. It is the position of the County of Suffolk that the Order of the Appellate Division, Second Department, dated January 16,2013, should be affirmed regarding a County's right to charge-back the costs for a non-resident to attend Fashion Institute of Technology to the Town in which the non-resident student lives. Suffolk County, located on the east end of Long Island, is one of the twelve original counties in New York State. It is the largest county on Long Island with more than 900 square miles within its borders. According to 2010 census data, Suffolk County is home to approximately 7.7 percent of New York State's population with 1,493,350 residents. Among Suffolk County's residents are students that attend the Fashion Institute of Technology. Since the 2009/2010 school year, the County of Suffolk has paid in excess of $17,540,549.80 to a community college called "Fashion Institute of Technology" for attendance of Suffolk County residents at that educational institution. In accordance with relevant portions of the Education Law that are discussed below, Suffolk County is entitled to charge back all expenses paid to 1 Fashion Institute of Technology to the individual towns of Suffolk County where the students reside. The County of Suffolk has a substantial interest in the appeal that is presently pending before this Honorable Court. The millions of dollars that the County expends each year to Fashion Institute of Technology is an expense that is properly borne by the local towns where the individual students reside. As demonstrated below, whatever amount Suffolk County is obligated to pay to Fashion Institute of Technology should be subject to statutory charge-back to the individual towns in accordance with Education Law § 6305(5). It cannot be disputed that the County of Suffolk has closely monitored this litigation, and has appropriately amended its local laws as each determination is been issued in this case. For example, in response to the trial level decision rendered by the Supreme Court, Nassau County (Parga, J.), the County of Suffolk enacted its own resolution concerning reimbursement terms for Suffolk County students who attend the Fashion Institution of Technology as follows: WHEREAS, a recent decision of the New York State Supreme Court (Justice Parga, Nassau County) concluded that Nassau County could . charge back to the Town of North Hempstead for the amounts paid by the County to FIT for town residents enrolled in two-year education programs and those seeking two-year associate degrees; and 2 WHEREAS, it is clear from this court decision that Nassau County, and all other Counties in the state, are only responsible to reimburse FIT for County residents who are enrolled in FIT's two-year programs; now, therefo~e be it RESOL VED, that is shall be the policy of the County of Suffolk to limit reimbursement to the Fashion Institute of Technology for costs associated with Suffolk residents enrolled in FIT's two-year education programs and those seeking two-year associates degrees; and it be further RESOL VED, that the Suffolk County Comptroller is hereby authorized and directed to limit payments to FIT for allocable costs attributable to County residents enrolled in a two-year program and/or seeking a two-year degree; and it be further RESOL VED, that the Comptroller shall not reimburse FIT for costs associated with Suffolk County residents enrolled in the Baccalaureate or Master's program .... Suffolk County Legislative Resolution 807-2011. Based upon the Supreme Court's determination in this case, since the County was only required to pay for two year programs to Fashion Institute of Technology, the County's charge-back to local towns was limited to the actual expenditures for the two year programs. See Suffolk County Legislative Resolution 732-2012. When the Second Department issued its determination in this case, the County of Suffolk amended its FIT resolutions to provide a charge-back to the Towns for all monies expended by the County for its residents to attend all Fashion 3 Institute of Technology programs, including bachelor's degree and master's degree students: WHEREAS on January 16,2013, the Second Department issued an opinion in the matter of Town of North Hempstead v. County of Nassau (2013 NY Slip Opinions 00216 2d Dept.), finding that counties are entitled to charge back for amounts paid for residents enrolled in four-year undergraduate and graduate programs at FIT, since FIT is financed and administered in the manner provided for community colleges; and WHEREAS, in light of this decision, the County wishes to amend [its prior resolutions] to remove the exceptions related to FIT and to authorize a charge back for ... Suffolk County residents attending FIT as non-residents, regardless of whether such attendance is for three-year or four-year undergraduate programs or graduate programs; now, therefore be it ... RESOLVED that pursuant to section 6305(5) of the New York Education Law, a charge back upon the respective towns is hereby imposed for the costs paid by the County ... for the allocable portions of the operating costs and capital costs of the New York Fashion Institute of Technology and the other New York State Community Colleges for Suffolk County residents attending such college as non- residents .... Suffolk County Legislative Resolution 522-3013. As this case has proceeded through the legal system, the County of Suffolk has made certain that its reimbursement and charge-back resolutions were in accordance with the decisions that have been issued in this case. Presently, in accordance with the Second Department's determination, Suffolk County seeks reimbursement of all funds expended by the County of Suffolk for individual town 4 residents who were in non-resident attendance at all programs of the Fashion Institute of Technology and New York State Community Colleges, whether the involved programs were for two year Associate Degrees or more advanced degrees. As demonstrated, the interest of Suffolk County in this litigation is substantial. The Second Department of the Appellate Division has properly determined that any financial obligations to Fashion Institute of Technology should ultimately fall upon the individual towns where the students reside. See Education Law § 6305(5). Suffolk County's position as amicus curiae protects the interest of7. 7 percent of the population of the State of New York while ensuring full compliance with the statutes and decisional law of this state. Thus, Suffolk County's interest in this litigation is very real and there can be no dispute that Suffolk County will be directly affected by the Court's decision in . the case at bar. 5 IT IS WELL ESTABLISHED THAT FASHION INSTITUTE OF TECHNOLOGY IS A COMMUNITY COLLEGE IN THE STATE OF NEW YORK In interpreting New York's Education Law, like any other consolidated law in the State of New York, all sections of the Education Law must be construed and harmonized. See Statutes §§ 97,98 (McKinney 1971). Community colleges are "[ c ]olleges established and operated pursuant to the provisions of this article, either individually or jointly, by counties, cities, intermediate school districts, school districts approved by the state university trustees, or individually by community college regions approved by the state university trustees, and providing two-year post secondary programs pursuant to regulations prescribed by the state universi~ trustees and receiving financial assistance from the state therefor." Education Law § 6301(2). A similar definition is set forth in Education Law § 6303(1). For decades, however, Fashion Institute of Technology has been described as being "unique among the State's community colleges" based upon the curriculum and the structure of the education. See 1979 Session Laws 1773; see - ~ also Amato v. State, 131 Misc.2d 1049, 1049-50,502 N.Y.S.2d 928, 928 (Ct. Cl. 1986)("[i]n his memorandum approving a 1979 amendment to the Education Law, then Governor Hugh L. Carey described the Fashion Institute of Technology as . 6 being unique among the State's community colleges ... because of its hybrid nature."} Every reported decision that has analyzed Fashion Institute of Technology's status in the college system has concluded that it is a community college organized and existing pursuant to Education Law § 6302(3}. See Jackson v. Board of Education, 30 A.D.2d 57,60, 812 N.Y.S.2d 91, 94 (15t Dep't 2006); Amato v. State, 131 Misc. 2d 1049, 1049-50,502 N.Y.S.2d 928, 928 (Ct. Cl. 1986); Jackson v. State of New York, 2002 WL 3419829 (Sup. Ct., New York County 2002) (Fashion Institute of Technology" is a community college sponsored by the Board of Education of the City of New York). Fashion Institute of Technology's unusual community college status was discussed in Mostaghim v. Fashion Institute of Technology, 2001 WL 1537544 (S.D.N.Y. 2001), where the Court noted the following: FIT is a community college, albeit an unusual one .... FIT is anomalous among community colleges in that it offers baccalaureate and Master's degree programs in addition to two-year programs, but in all other relevant statutory respects is like all other community colleges. Id. at *2 (citations omitted). The mere existence of baccalaureate and master's degree programs does not remove Fashion Institute of Technology from the realm of being a community college: it merely makes the school umque. 7 Turning to Education Law § 2587 for further clarification, it is noted that "'[c]ommunity college' shall mean Fashion Institute of Technology, a community college sponsored by the board of education of the City of New York." Education Law § 2587(l)(a). Fashion Institute of Technology operates under the auspices of Education Law § 6302(3), which provides that "[i]n the City of New York, the board of education, with the approval of the state university trustees, may act as a local sponsor I in the establishment and operation, as a community college, of a post secondary technical training institution which is partly supported by such board of education. ... In addition to the community college programs and curricula authorized by this article, the institution may offer such baccalaureate, masters . degree programs and curricula in support of its mission. ... Notwithstanding any other provision of law, the institution shall be financed and administered in the manner provided for community colleges." Education Law § 6302(3). As noted above, every statutory and case reference that discusses Fashion Institute of Technology describes it as a singularly unique community college. Although unique, however, Fashion Institute of Technology remains a "community college" under the auspices of the Education Law, and appropriate tuition costs I Local sponsor means the entity "sponsoring or participating in the establishment or operation of a community college." Education Law § 6301(2). 8 may be charged back to the home towns of the students that attend Fashion Institute of Technology. SUFFOLK COUNTY IS ENTITLED TO REIMBURSEMENT OF ALL MONIES PAID FOR NON-RESIDENT STUDENT ATTENDANCE AT FASHION INSTITUTE OF TECHNOLOGY FROM THE TOWNS IN WHICH THE STUDENTS RESIDE Two different sections of Education Law § 6305 protects counties from bearing ultimate responsibility for charges attributable to community colleges such as Fashion Institute of Technology. See Education Law §§ 6305(5),6305(10). In accordance with Education Law § 6305(5), counties were given discretion to charge-back any costs that were paid by the County associated with a student's attendance at a non-resident community college back to the student's home town or city.2 To ameliorate the costs to localities, in 1994, the New York State Legislature amended Education Law § 6305 to add subdivision 10. The 1994 statutory amendment did not repeal or make any other alterations to section 6305. The 1994 amendment provided the following: 2 Education Law § 6305(5) provides that "[a]mounts payable to such colleges by a county pursuant to this section shan be a general county charge; provided, however, that with respect to the amounts allocable to each community college a county may charge back such amounts in whole or in part to the cities and towns in the county is proportion to the number of students who; on the basis of certificates of residence issued by such county, were attending each such college as non-residents of the local sponsors thereof during the terms for which the county has been charged, and who were residents of each such city or town at the beginning of such tenus." 9 §400. Section 6305 of the education law is amended by adding a new subdivision 10 to read as follows: 10. On or before March thirty-first, nineteen hundred ninety-five and every year thereafter, the state shall reimburse each county which has issued a certificate of residence for any non-resident students in attendance at fashion institute of technology during the nineteen hundred ninety-three - ninety-four academic year and every year thereafter in an amount equal to fifty percent of the actual amount paid by such county on behalf of such students and on or before June first, nineteen hundred ninety-five and every year thereafter, the state shall reimburse each county for the remaining fifty percent of the actual amount paid by each such county on behalf of such students. 1994 N.Y. Laws ch. 170 (217th Session - 1994). This amendment to the Education Law provided the local towns and cities with relief from the potential reimbursement costs for its residents'attendance at Fashion Institute of Technology. Since calendar year 2001, the annual New York State Budget Bill has failed· to provide any appropriation for County reimbursement of FIT expenditures in accordance with section 6305(10). In a prior case ~ County of Suffolk v. King :-- the County of Suffolk argued that the State of New York was mandated to provide funds to provide reimbursement under Education Law § 6305(10). This argument was rejected and it was determined that the failure to fund FIT reimbursement under section 6305(10) in the "omnibus budget bill" is an annual repeal by 10 implication. See County of Suffolk v. King, Index Number 2636/2004 (Sup. Ct., Albany County 2004) affd 18 A.D.3d 1010, 794 N.V.S.2d 695 (3d Dep't 2005). In affirming the annual repeal of section 6305( 1 0) based upon lack of appropriation, the appellate division held the following: It is now clear that appropriation bills proposed by the Governor and passed by the Legislature can alter preexisting statutory law to the contrary (see Pataki v. New York State Assembly, 4 N.Y.3d 75, 98-99, 791 N.V.S.2d 458, 824 N.E.2d 898 [2004]). Significantly, this principle was enunciated by the Court of Appeals in the context of its consideration of the very same bill which eliminated appropriations . for the program at issue here (see id. at 98, 791 N.V.S.2d 458, 824 N.E.2d 898). Therefore, despite the seemingly unambiguous mandate that "the state shall reimburse each county" (Education Law § 6505[10]) for FIT charge-backs, the Governor and the Legislature have abrogated this provision through the budget process. Thus, [the County] has no legal claim [for reimbursement against the State]. County of Suffolk v. King, 18 A.D.3d 1010, 1011, 794 N.V.S.2d 695,695-96 (3d Dep't 2005). Thus, in accordance with New York's rules of statutory construction, Education Law § 6305(5) and 6305(10) must be harmonized to give each one meaning and effect. See Statutes § 98 (McKinney 1971). A statute must be read so that each word therein will have a meaning and not so that one word or sentence will cancel and render meaningless another word or sentence. See Statutes § 98 at page 223 (West 1971). 11 As demonstrated in the respondent, County of Nassau's brief on this appeal, harmonizing these two subdivisions of section 6305 is quite simple: Counties are entitled to full reimbursement for contributions to non-resident students who attend . community colleges such as FIT. There are two potential sources of reimbursement: reimbursement from the Town where the non-resident student lives (according to section 6305(5)) or reimbursement from the State when such appropriations are available (according to section 6305(10)). The position advocated by the appellant in this case - that the enactment of 6305(10) was a repeal of 6305(5) - is illogical. Section 6305(5) requires local cities and towns to reimburse counties for community college tuition costs when the students in the cities and towns attend a community college outside of their home county. It cannot be d'isputed that when State funding is available, section 6305( 10) provides a windfall of financial relief to local cities and towns. The windfall set . forth in section 6305(10) exists only as long as state funding is available. Once the Legislature fails to appropriate funds, the local cities and towns lose their windfall and must the resume their obligation to be the ultimate source of reimbursement for their residents' schooling. See 8 N.Y.C.R.R. § 602.l2(g).3 38 N. Y.C.R.R. § 602.12 provides the following: "On or before March 31, 1995, and every year, thereafter, the State University shall, subject to the available appropriation therefore, reimburse 12 The reimbursement from New York State as set forth in section 6305(10) was continued until the New York State Executive Budget for calendar year 2000-01. The 2000-01 Executive Budget reflected a "discontinuance of the State's reimbursement to counties for their cost of resident students attending FIT". It was subsequently determined that New York State could abrogate the annual statutory reimbursement provision set forth in Education Law §6305(l0) by failing to appropriate moneyin the annual budget. See County of Suffolk v. King, 18 A.D.3d 1010, 794 N.Y.S.2d 695 (3d Dep't 2005); Pataki v. New York State Assembly, 4 N.Y.3d 75, 824 N.E.2d 898, 791 N.Y.S.2d 458 (2004). Notably, the Legislature has not eliminated Education Law § 6305(10): the Executive Budget has simply failed to fund this reimbursement provision since calendar year 2001. Thus, in the event that a future New York State Executive Budget ever resumes.funding for the reimbursement provided by section 6305(10), each County with students attending the Fashion Institute of Technology each county which has issued a certificate of residence for any nonresident student in attendance at the Fashion Institute of Technology during the 1993-94 academic year and every year· thereafter in an amount equal to 50 percent of the actual amount paid by each such county on behalf of such students, upon certification of such payment by the Fashion institute of Technology, and on or before June 1, 1995, and every year thereafter, the State University shall, . subject to the availability of appropriation therefore, reimburse each county for the remaining 50 percent of the actual amount paid by each such county on behalf of such students, upon certification of such payment by the Fashion Institute of Technology." In the event that state funding is not pursued under Education Law § 6305 (10), or is not available due to lack of appropriation, section 6305(5) provides an alternate discretionary remedy for the County to receive reimbursement from cities and towns for the costs for their non-resident students' attendance at FIT. 13 community college would have a right to seek reimbursement from New York State. The lack of New York State funding to provide reimbursement pursuant to Education Law § 6305(10) does not affect the continued validity of section 6305(5), which provides the following: Amounts payable to such colleges by a county pursuant to this section shall be a general county charge; provided, however, that with respect to the amounts allocable to each community college a county may charge back such amounts in whole or in part to the cities and towns in the county in proportion to the number of students who, on the basis of certificates of residence issued by such county, were attending each such college as non-residents of the local sponsors thereof during the terms for which the county has been charged, arid who were residents of each such city or town at the beginning of such terms. Education Law § 6305(5)(emphasis added). It has lorig-been held in this state that the abrogation of one subsection of statute does not result in a repeal of the entirety of the statute. See generally Moore v. Mausert, 49 N.Y. 332 (1872)(original statutory provisions remain effective in the event of a statutory amendment that adds new subsections); In re Lawyers Title & Guaranty Co., 179 Misc. 46; 48,37 N.Y.S.2d 239, 241 (Sup. Ct., Bronx County 1942)(statutory "repeals by implication are not favored and it is a 14 general rule of statutory construction that a statute is not deemed to repeal an earlier one in the absence of express words of repeal"), When Education Law § 6305(10) was abrogated by its lack of state funding, the counties with students attending Fashion Institute of Technology as non- resident students could choose to seek reimbursement from the home towns and cities of the involved students. In its determination, the Second Department adopted the above reasoned analysis and rendered the following holdings: The Town contends that the County may not charge back the expenses associated with FIT because, in 1994, the legislature enacted a new subdivision of Education Law § 6305, which provided that the State would reimburse counties for such costs (see Education law § 6305 [10]; I 1994, ch 170, § 400). However, since 2001, no appropriations for the State's FIT reimbursement program have been included in the State budget (see L 2001, ch 53). Hence, the provision mandating the State to reimburse counties for FIT-related costs has been superseded by the appropriation bills (see Pataki v. New York State Assembly, 4 NY3d 75, 98-99; Matter of County ofSuQOlk v. King, 18 AD3d 1010). Contrary to the Town's contention, the doctrine of legislative equivalency is not implicated, as both Education Law § 6305(10) and the budgets were enacted by the same means (see Matter of Lamb v. Town of Esopus, 35 AD3d 1004; Matter of Heron v. City of Binghamton, 307 AD2d524; Compare Matter of New York Pub. Interest Research Group v. Dinkins, 83 NY2d 377; Matter of Gallagher v.Regan, 42 NY2d 230, 234). Additionally, the statutory mechanism allowing the County to demand such charge-backs does not limit the County's ability to charge back only for amounts paid to FIT for Town residents enrolled in two-year education programs and those seeking two-year Associate Degrees (see Education Law § 6305[5]). Although FIT is authorized to offer 15 baccalaureate and masters degree programs, the institution is to be "financed and administered in the manner provided for community colleges" (Education Law § 6302[3]). Thus, FIT remains a community college under Education Law article 126 (see Jackson v. Board ofEduc. Of City ofN.Y., 30 AD3d 57,60), and the County is entitled to a charge-back from the Town for the amounts paid by the County to FIT for Town residents enrolled at FIT in four-year undergraduate programs and graduate programs. The only limitation upon the charge-backs is that the nonresident students must be "attending" such community college (see Matter of Fulton- Montgomery Community Coli. v. County of Saratoga, 80 AD3d 217, 220). Town of North Hempstead v. County of Nassau, 102 A.D.3d 800,801-02,958 N.Y.S.2d 414, 416-17 (2d Dep't 2013). Thus, each County with students attending any community college as a non- resident, including Fashion Institute of Technology, has the statutory right to seek reimbursement from the student's home town. In accordance with the terms of the statute, this reimbursement right may be exercised "in whole or in part" by the County. The decision concerning the amount of reimbursement requested by the County from its local towns and cities remains exclusively within the discretion of the County. The various sections within New York's Education Law clearly obligate towns and cities within a particular County to reimburse the County for all of the tuition costs that the County is legally obligated to remit for their residents' attendance at Fashion Institute of Technology. 16 CONCLUSION As demonstrated above, each county in the state is entitled to reimbursement from its towns and cities for the expenses of non-resident students who attend the Fashion Institute of Technology from the student's home city of home town. Thus, it is respectfully submitted that the Order of teh Appellate Division, Second Department, dated January 16,2013, should be affirmed concerning the right of Counties to charge-back to cities and towns the non-resident costs for attendance at Fashion Institute of Technology. DATED: Hauppauge, New York May 6, 2014 Respectfully submitted, DENNIS M. BROWN Suffolk County Attorney Attorney for Amicus Curiae, County of Suffolk 100 Veterans Memorial Highway Hauppauge, New York 11788 (631)853-40 9 BY: Christoph Assistant County Attorney CERTIFICATION CHRISTOPHER A. JEFFREYS certifies that the following statements are true: The word processing program used in the production of the within brief is Microsoft Word which has determined that the within Brief of Amicus Curiae contains 4,109 words. The type font for the text of the brief is Times New Roman and the point size is 14 points. The type font for the footnotes is Times New Roman and the point size is 12 points. All text, except block quotations that are more than two lines are in double space type. c~St~~ Assistant County Attorney