New York Public Personnel Law: Removal from public office

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”.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.