Opinion
March 13, 1992
Appeal from the Supreme Court, Chautauqua County, Ricotta, J.
Present — Callahan, J.P., Boomer, Balio, Davis and Doerr, JJ.
Order unanimously affirmed with costs. Memorandum: Election Law § 3-300 expressly empowers a county board of elections to appoint "and at its pleasure" to remove its employees. By enacting that statute, the Legislature furthered the constitutional mandate of bipartisan participation in the functions of boards of elections (see, N Y Const, art II, § 8) and vested boards of election with complete and exclusive control of their personnel and the performance of their duties in that highly sensitive governmental area. Indeed, an employee of the board of elections can be removed from her position only upon the concurrent approval of the two commissioners of elections (see, Matter of Starr v Meisser, 39 A.D.2d 712, affd 33 N.Y.2d 748; Matter of Conlin v Kisiel, 35 A.D.2d 423, affd 28 N.Y.2d 700). The arbitrator, in concluding that the County of Chautauqua could unilaterally usurp the county board's removal powers through the collective bargaining process, violated the strong public policy mandate clearly expressed in section 3-300, and Supreme Court properly vacated the arbitration award upon that ground.
Moreover, it was "completely irrational" for the arbitrator to determine that Phyllis Clute, an elections technician, was a "permanent regular employee" entitled to the protections of the disciplinary procedures set forth in the collective bargaining agreement. Employees of county boards of election are in the unclassified civil service and are not subject to civil service laws and regulations, including section 75 Civ. Serv. of the Civil Service Law (see, Matter of Blondheim v Cohen, 248 App. Div. 75, affd 272 N.Y. 520; Matter of Larson v Tangalos, 113 Misc.2d 696; Matter of Starr v Meisser, 67 Misc.2d 297, 300, revd on other grounds 39 A.D.2d 712, affd 33 N.Y.2d 748, supra). Because Clute was removable at the pleasure of the board of elections, she could not attain the civil service status of a permanent employee. Respondent's reliance upon cases suggesting that procedures preliminary to tenure decisions in the education field can be submitted to arbitration (see, Matter of Board of Educ. [Middle Is. Teachers Assn.], 50 N.Y.2d 426, 429; Matter of Northeast Cent. School Dist. v Webutuck Teachers Assn., 71 A.D.2d 673, affd 52 N.Y.2d 717) is misplaced. In those cases, the party having the power to deny tenure is the same party entering into the collective bargaining agreement. In the subject case, the board of elections plays no part in collective bargaining, and the County has no authority to unilaterally negate or restrict the board of elections' statutory removal powers through collective bargaining.