Simple majority vote required for most personnel actions taken by a Board

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Simple majority voterequired for most personnel actions taken by a Board Inquiry from a NYPPL reader
From time to time a reader will submit a question concerninga personnel matter that may be of general interest to the readers of New YorkPublic Personnel Law. In this instance the reader submitted an inquiryregarding the termination and reinstatement of police officers or firefightersby a Town or Village Board. The question: "Does a Town Board or a VillageBoard need a 'super majority' to either terminate or reinstate apolice officer or firefighter?"
In your editor's opinion, unless there is a law, rule,regulation or a provision in a collective bargaining agreement providingotherwise, generally all that is required to appoint, suspend, terminate orreinstate an individual to a position is a simple majority of a board when aboard is the “appointing authority.”
For example, Education Law Section 2573(1)(a) permits thetermination of a probationary teacher "at any time during [theindividual's] probationary period, on the recommendation of the superintendentof schools, by a majority vote of the board of education" while EducationLaw Section 2509(2) states that a majority vote of a school board for tenure isrequired to grant a probationary teacher tenure.
With respect to the granting of tenure by a board ofeducation, the Commissioner of Education rejected the theory that a majorityvoting against tenure was required to deny a teacher tenure in the district[Decisions of the Commissioner of Education Decision No. 14,337]. In otherwords, unless there is an affirmative vote by a majority of the members of theschool board to grant the individual tenure, he or she cannot claim tenureexcept in those relatively rare situations where the individual attains tenureby acquiescence or estoppel by operation of law.
As to a “super-majority” vote requirement, in some instancesthis is provided for by statute.
In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d766, the Court of Appeals pointed out that where a planning commissionrecommends that the application for a special use permit be denied, GeneralMunicipal Law §239-m requires a “super-majority” vote by the town board inorder to overturn the commission’s recommendation.
In Headriver, following a public hearing, the Board voted3-2 to grant the special use permit. As the statutory super-majorityrequirement [i.e., a 4-1 vote], the commission's recommendation had not beenoverturned by the Board as the statute required “a vote of a majority plus oneof all the members thereof.”
In another case, the court ruled that the Brookhaven TownBoard violated its own procedures when it considered a resolution less than 90days after earlier rejecting it. The Board’s procedure mandated that "AResolution, Local Law or Ordinance that receives less than a majority of votesshall not be reintroduced for ninety days (90) or unless this rule is waived bya super-majority vote of the Town Board." [East End Property Co. No. 1 LLCv. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].
Additionally, General Construction Law §41 requires amajority of the entire board to take any official action. Relying on thisprovision, the Commissioner of Education ruled that a school board may notadopt a policy requiring affirmative votes by more than a majority of the wholenumber of the board to take official action because neither the Education Lawnor the General Construction Law authorizes a board to adopt requirements inexcess of those already provided by statute (Miller, 17 Ed Dept Rep 275).
In contrast, Education Law §3016(2) requires a two-thirdsvote of the board to appoint a relative of a board member to a teachingposition, rather than the simple majority to appoint a non-relative, thusrequiring a "super-majority" to appoint a board member's relative toa teaching position.
As earlier noted, a “super-majority” may be “a majority ofall voting members of a body, plus one;" a specified number such as atwo-third or three-quarter vote; or in rare cases, a unanimous vote by thebody.
On a related issue, "Determining if a quorumrequired to conduct official business is present," see Formal Opinions ofthe Attorney General 2008-F1.