Opinion
July 15, 1991
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the judgment and the order are affirmed, without costs or disbursements.
The plaintiff, Suffolk County Association of Municipal Employees Inc. (hereinafter SCAME), is the collective bargaining representative of approximately 7,500 Suffolk County employees. In October 1989 the defendant County of Suffolk and SCAME negotiated a collective bargaining agreement which became valid and binding on the parties in January 1990 when it was signed by the County Executive.
By memorandum dated March 13, 1990, the County Executive informed the County Legislature that there would be a budgetary shortfall of $31,000,000 in 1991. Pursuant to Suffolk County Charter § C4-27 and Suffolk County Administrative Code §§ A4-7 and A4-8, the County Executive prepared and transmitted to the County Legislature a comprehensive savings plan to eliminate the deficit. The savings plan consisted of eight components, the last of which provided for layoffs of approximately 100 employees. A proposed resolution was attached to the memorandum for the County Legislature's review and approval. The County Legislature did not act on the proposed resolution within the 10-day period set forth in Suffolk County Administrative Code § A4-7. The County Executive then concluded that the County Legislature's inaction was tantamount to approval and that the proposed resolution could be put into effect.
On April 1, 1990, and continuing thereafter, the County Executive's Office sent layoff notices to approximately 96 of the County's employees, all of whom were members of SCAME and covered by the collective bargaining agreement. Of the 96 employees who received notices, 31 were discharged, two resigned, 10 retired, 39 continued to be employed in other positions, funding for three was given to the Long Island Regional Planning Board, and 11 others had their layoff notices rescinded.
SCAME commenced this action to, inter alia, permanently enjoin the defendant from implementing these layoffs. The Supreme Court granted this relief to SCAME. We affirm.
The County Executive was without authority to lay off 96 employees without first obtaining the approval of the County Legislature. The abolition of civil service positions is a budgetary modification under Suffolk County Charter § C4-31 (E) (2), which must be implemented by a different procedure than the allotment system used by the County Executive in this case. While inaction by the County Legislature is tantamount to approval under the allotment system (see, Suffolk County Charter §§ C4-27, C4-29; Suffolk County Administrative Code §§ A4-7, A4-8) the budgetary modifications involved here require the approval of the County Legislature (see, Suffolk County Charter § C4-31 [D]; Matter of Slominski v Rutowski, 91 A.D.2d 202, mod on other grounds 62 N.Y.2d 781; Matter of Henry v Noto, 74 A.D.2d 604, mod on other grounds 50 N.Y.2d 816) and the inaction by the County Legislature is tantamount to rejection of the proposed modification (see, Suffolk County Charter § C4-31 [D]; Suffolk County Assn. of Mun. Employees v County of Suffolk, 163 A.D.2d 469, 472). Moreover, those cases on which the defendant relies (see, Matter of Caputo v Halpin, 160 A.D.2d 938, affd 78 N.Y.2d 117; Matter of Romaine v Halpin, 160 A.D.2d 945, affd 78 N.Y.2d 117) are distinguishable in that they deal with a temporary hiring freeze effectuated by the County Executive in order to avoid a budget deficit (see, Suffolk County Charter § C4-29) rather than with a budget modification (see, Suffolk County Charter § C4-31; Suffolk County Assn. of Mun. Employees v County of Suffolk, supra).
With regard to the propriety of the judgment that was signed by the Supreme Court, a judgment must speak as of its date and be based on the then existing facts (see, Reiner v Reiner, 100 A.D.2d 872, 875). The parties agree that most of the positions that are at issue on this appeal were lawfully abolished with the adoption of the County's 1991 operating budget. Therefore, the Supreme Court did not err in enjoining the defendant from laying off, and in reinstating only those employees whose positions were not abolished, and in awarding back pay only through December 31, 1990, to the remaining employees whose positions were abolished. Kunzeman, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.