Former Court Clerk's eligibility in doubt

Patricia Rubino was not reappointed to the position of court clerk in the Town of North Salem. Credits: photo courtesy of Patricia Rubino

NORTH SALEM, N.Y. - Over the last week, Patricia Rubino of Danbury has been telling multiple news outlets that she was not reappointed as a court clerk for the Town of North Salem because of her health.

Rubino had been one of two court clerks for the Town of North Salem for the past nine-and-a-half years and said she had received a letter on Dec. 22, 2015 stating that her last day of work would be Dec. 31, 2015.

Rubino has been battling a form of cancer called multiple myeloma, a hematological (blood) cancer that develops in the plasma cells found in the soft, spongy tissue at the center of the bones (bone marrow). However, it may have been her moving from Brewster over the state line to Connecticut two years ago that made Rubino ineligible to be reappointed to her position.

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Any person who holds an appointed or elected position is considered a public officer in the State of New York. According to §3.8 of the New York State Public Officers Law, “requiring a person to be a resident of the [municipality in the] state for which he shall be chosen, or within which his official functions are required to be exercised.”

Rubino was a New York State resident when she was last appointed as a court clerk in 2012 to a four-year term that ran from Jan. 1, 2012 until Dec. 31, 2015.

“I think the town is grasping at straws if they are trying to say I was not reappointed because I moved to Danbury,” Rubino said in a follow-up interview on Jan. 10. “I asked about moving before I bought my condo and I got an email from Maria Hlushko [confidential secretary to Town Supervisor Warren Lucas] on Dec. 5, 2013 that told me I was allowed to move.”

In a copy of the Dec. 5, 2013 email obtained by North Salem News, Hlushko says that based on the advice she was given, Rubino would be allowed to retain her position if she moved outside of New York.

“I called [an official in] Westchester County and relayed your question,” Hlushko wrote to Rubino in the email. “He confirmed that the Town used to have the residency requirement for the Court Clerk position, but the requirement has been waived. Therefore, you do not have a requirement to live in North Salem or in the State of New York. I will put this in your personnel file as a record that you are approved to live in New York or Connecticut. Please keep in mind that this applies to your position as a Court Clerk.”

When Hlushko was asked to confirm this email via a FOIL (Freedom of Information Law) request, she replied that “The Town Attorney has informed us that the Court Clerk residency was waived by passing the local law in 2003 to Section 21-9 of the Town Code, [which] waived the Town residency requirement, not the state requirement. The State residency requirement may not be waived by the Town.”

On Jan. 1, two new town justices, Hon. Stephen Bobolia and Hon. John Aronian, started their terms. According to the New York State Unified Court, town justices have the right to appoint a clerk of their choosing so long as they meet the state residency requirements. The judges did not reappoint Rubino, but they did reappoint MaryAnn Ambrosino, a Brewster resident, who has been working for the courts for 25 years.

“As an appointed position, you always know that there is a possibility [that you will no longer be working there],” Rubino said in the initial interview with North Salem News on Jan. 2. “There is no reason why they should have chosen to keep her over me.”
She added. “I was a great employee for nine years and for the past six months I have had health issues and had to go down to working 20 hours a week.”

However, a FOIL request of Rubino’s time sheets show that between June 1 and Dec. 31, 2015, she worked a total of 99 hours. She worked 17 hours in June, no hours in July or August, 9.75 hours in September, no hours in October, 24.5 hours in November and 47.75 hours in December. At no time since June has she worked 20 hours within a week.

“Those numbers are not right,” Rubino said in a follow-up interview on Jan. 10. “There were weeks that I worked over 20 hours. The judges [now-retired town justices Hon. Ralph Mackin and Hon. John Johnson] said I had the flexibility to do what I could.”

The time sheets also show that Rubino was being paid her full-time salary. She used her accrued sick and vacation time to supplement her hours through Aug. 14.

Hlushko sent an email to municipal employees on Friday, Aug. 14, asking if anyone would be willing and eligible to donate sick-leave credits toward two of their fellow employees “who have been dealing with health issues that have caused them to take an extended amount of time off.”

As a result of the email, time sheets reflect that donated time was used to pay Rubino her full salary from Aug. 17 through Sept. 8.
Rubino was not able to come back to work when the donated time had dried out.

On Sept. 8, the North Salem Town Board approved Resolution #201-15, which adopted a catastrophic illness policy that allowed the town to continue paying Rubino her full salary even though she had exhausted all other paid-leave options. At the Nov. 24 Town Board meeting, the catastrophic illness policy was extended until Dec. 31, the date that her term as court clerk ended.

“The issue is how they handled it,” Rubino said. “It was unfair, hurtful and added a lot of stress. This is taking a lot out of me. They should have had some compassion. If the town had kept me on, I could have gone on early retirement in May and have been able to keep my health insurance.”

With the time Rubino served in North Salem as well as 22 months she worked in the Town of Carmel Supervisor’s Office, she has over 10 years vested in the New York State Retirement System. Rubino’s concern is whether she would be able to keep her health insurance.

“I was told by Warren Lucas that I had to have 10 years with the town if I wanted to keep my insurance because the town pays for the health insurance,” Rubino said.

However, it appears that Rubino may be eligible. New York State Health Insurance Plan (NYSHIP) is the town’s health insurance carrier. According to the plan’s website, a retiree must meet three eligibility requirements to continue NYSHIP coverage. First, “If you were last hired on or after April 1, 1975, you must have at least 10 years of benefit eligible service [with NYS and/or a NYSHIP participating employer]. Second… If you are not a member of a retirement system or are enrolled in the Optional Retirement Program, you must meet the NYS ERS age requirement (age 55) or be qualified to receive Social Security disability payments. Third, you must be enrolled in NYSHIP or be an enrolled dependent of someone who is enrolled in NSYHIP on your date of retirement.”

Town officials declined to comment. Lucas stated that he could not comment because it is a personnel issue and because of the Health Insurance Portability and Accountability Act (HIPAA), which protects individuals’ medical records and other personal health information.

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