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Grand Island resolution flops as a new lawsuit over health commissioner overtime payments arises

A lawsuit filed in state supreme court Monday alleges that the county charter clearly states the Erie County health commissioner shouldn't receive overtime pay.

GRAND ISLAND, N.Y. — Before leaving office former Erie County Comptroller Stefan Mychajliw once again brought up the overtime payments that county health commissioner Gale Burstein earned during the pandemic, drawing the ire of county executive Mark Poloncarz.

"It's false. It's a lie. It's B.S.It doesn't pass the smell test," Poloncarz said at a press briefing last week.

Despite that, the Grand Island town board had an agenda item about it at Monday Night's meeting.

Councilmember Mike Madigan proposed the item seeking transparency from Erie County. 

"I did it because there are 62 counties in New York State, there's only one county, Erie County, the only county that is not only paid overtime but $284,000 in overtime," Councilmember Madigan said. 

There were several questions Madigan wanted to be answered in the resolution. The resolution reads: 

- Please confirm whether Erie County is in fact the only County that has paid significant Covid Over Time to their Health Commissioner out of the 62 counties in NY?

 - If, as widely reported, Erie County is the only County paying significant overtime to our Health Commissioner – please explain what makes Erie County so unique relative to the other 61 Counties in NY?

- The Health Commissioner is paid $209,000 per year (a wage in the top 5% for this region) – this is a salaried position. 

- In the private sector salaried positions are not paid overtime, almost without exception, regardless of working 40, 50, 60, or more hours. 

- Why do you feel the Erie County Health Commissioner should be treated differently to the tune of hundreds of thousands in additional overtime pay?

- Do you not see any conflict of interest concern with paying the County Health Commissioner hundreds of thousands in additional pay due to the Covid crises?

- Please verify if complete documentation exists for every hour of overtime by our health commissioner exists that can be reviewed with actual times and dates worked. 

- Please verify this documentation was generated as part of the payment process prior to payment to our Health Commissioner – a signed document?

- Out of respect to Erie County taxpayers should Erie County consider developing a plan to pay back the approximate $284,000 in Erie County Taxpayer funds paid to the Health Commissioner in overtime and discontinue the practice of these overtime payments consistent with other Counties in NY?

Ultimately, Madigan did not get any support for his resolution and it died on the vine. 

Earlier Monday, however, a lawsuit was filed in state supreme court alleging that the Erie County charter clearly indicates that the health commissioner should be salaried and not receive overtime. 

The lawsuit reads, in part: 

"Section 502 of the Erie County Charter provides that “the Commissioner of Health

shall have all the powers and perform all the duties conferred or imposed upon county health

commissioners and/or county boards of health by law.”

The Erie County Legislature is the governing body of Erie County having superseded and replaced the Board of Supervisors of Erie County.

Section 202 of the Erie County Charter provides that the Erie County Legislature has all of the powers and duties previously possessed by the Board of Supervisors of Erie County.

New York Public Health Law § 352(1) provides that “[e]very county health commissioner shall devote his entire time to the duties of his office.”

New York Public Health Law § 351(6) provides that “[t]he county health commissioner … shall receive such compensation as may be fixed by the board of supervisors.” As set forth above, all powers and duties of the board of supervisors are held by the Erie County Legislature"