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Friday, September 09, 2011

Removal from public office


Removal from public office
Capobianco v Village of Massapequa Park, 278 AD2d 268

Village of Massapequa Park village administrator Meredeth Capobianco sued the Village claiming she had been subjected to a “wrongful discharge” from her position.

As it turned out, what proved critical to her claim was a resolution adopted by the Village providing that the “Village Clerk-Treasurer shall be the Village Administrator and shall serve in such capacity at the pleasure of the Board of Trustees”.

On April 5, 1999, Capobianco was appointed as Village Administrator to serve for a two-year term. The Village terminated her employment effective August 25, 1999.

Capobianco sued, contending that she was “wrongfully removed from office as the Village Administrator, Clerk-Treasurer in violation of Public Officers Law Section 36.

The Village, on the other hand, asked the court to dismiss her petition, arguing that Capobianco was an at-will employee rather than a village officer, and, therefore, Section 36 was not applicable in her situation. A State Supreme Court judge agreed with the Village and dismissed Capobianco's petition.

The Appellate Division agreed with Capobianco, reversing the lower court's decision. It said that the record demonstrated that Capobianco the Village Clerk-Treasurer and thus a Village officer within the meaning of Section 3-301[1] of the Village Law. The court pointed out that “the Village's own resolution provided that the Village Clerk-Treasurer was the Village Administrator.”

Because Capobianco was a village officer, she could only be removed from office in accordance with the procedure set forth in Public Officers Law Section 36, despite the provision in the resolution that she was to serve at the pleasure of the Board of Trustees.

Since Massapequa Park failed to provide Capobianco with the required pre-termination hearing, the court said that she was “entitled to remain in office unless and until removed in accordance with Public Officers Law Section 36,” citing Sullivan v Taylor, 279 NY 364.

As to the relevant statute, the decision indicates that Public Officers Law Section 36 provides, in part, that:

A Village officer “may be removed from office by the Supreme Court for any misconduct ... An application for such removal may be made by any citizen resident of such ... village ... or by the district attorney of the county in which such ... village ... is located, and shall be made to the Appellate Division .... Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice”.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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