Justice fired as court clerk, may sue

PHOTOGRAPHER: Michael Goot

The attorney for Town Justice Michelle Van Woeart is promising legal action after the Town Board last week removed her from her duties as court clerk.

At issue was Van Woeart simultaneously holding the justice and clerk’s positions and being paid for both. The state Attorney General’s Office sent a letter to the town last month, saying that those positions were “incompatible” and she couldn’t do both jobs.

Van Woeart had rejected a settlement offer Oct. 9 that would have allowed her to continue to do some of the administrative duties as clerk for a transition period until the end of the year.

Van Woeart was a court clerk when she became town justice in 1997. By 2011, she was making $19,548 per year as a justice and $26,667 as clerk, according to the town budget. An assistant clerk makes $25,885.

Supervisor Mike Joyce said the town last Tuesday made a proposal for Van Woeart to work reduced hours as clerk with retained health benefits as a sign of goodwill.

“It was a pretty big cut in her pay, so we tried to soften the blow,” he said.

This would be a transition period until a new clerk is brought on in 2013. Joyce said he is still putting together next year’s budget and didn’t know how many hours this position would entail, nor the pay. The town has another court clerk as well.

He estimated that the salary for the rest of 2012 would have come out to be about $4,500, which is less than the close to $6,000 it would have been under the old arrangement.

Van Woeart’s salary as an elected town justice cannot be altered.

“We’re trying to do the right thing here and try to make her whole as possible,” he said.

This issue would affect Van Woeart’s future pension. Because she was holding both positions, Van Woeart was accumulating pension credits, according to state Comptroller’s Office spokesman Eric Sumberg. “Her salary for both jobs counts,” he said.

When she is eligible to retire, the average of her combined salary for both jobs for her three highest consecutive years of earning will be used to calculate her pension.

Van Woeart’s attorney, Stephen G. DeNigris, said he did not receive a copy of the proposal before the Town Board meeting and believes his client’s removal is politically motivated. “It’s interesting the way they try to railroad people and run over people in that town,” he said.

The board on Tuesday went into executive session where he was presented with a five-page document and town officials asked her to sign it immediately without having a chance to look it over. He said he should have a month to review it.

Joyce said the town a week before had faxed the proposed agreement over to the attorney that Van Woeart was using at the time, John Seabold.

Town Attorney Michael Cuevas said the town didn’t know she had changed attorneys. He added that the town had to remove her from the clerk’s duties and let Schenectady County Civil Service Commission know there is a vacancy.

DeNigris said he would file his lawsuit in state Supreme Court this week seeking to block the firing.

DeNigris represents mostly law enforcement officers but represents others with workplace problems, according to his Facebook page.

When asked about pending litigation, Joyce said he is sorry if it has to come to that.

“I’m not sure there’s anything here myself or the Town Board can do. It’s really out of our hands,” he said.

The Attorney General’s Office opinion was clear that it was “incompatible” for Van Woeart to hold the two positions, Cuevas noted.

He said there is a large body of case law that says once a person accepts a second position, he or she is deemed to have resigned the first position, even without a formal resignation.

Van Woeart had previously been censured by the state Commission on Judicial Conduct, which found that she failed to handle properly tickets issued to her and her sons for alleged animal control violations involving their dogs.