Tuesday, December 22, 2015

Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law



Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law
Hayes v Avitabile, 2015 NY Slip Op 08693, Appellate Division, Third Department

Gary R. Hayes initiated legal action pursuant to Public Officers Law §36 in an effort to have the Appellate Division remove Matthew A. Avitabile from the office of Mayor of the Village of Middleburgh.

Explaining the "Public Officers Law §36 was enacted to enable a town or village to rid itself of an unfaithful or dishonest public official" and that removal from office is a drastic remedy reserved for conduct "'plagued by self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust,” the Appellate Division concluded that Hayes’ allegations, if proved, did not constituted such action.

Hayes had alleged that Avitabile had abused the authority vested in him by the office of Mayor by simultaneously holding the position of Village Constable, appointing unqualified candidates to various positions in his administration, “published an email attempting to defame his character” and “improperly refused to reimburse him for sewer rent charges.”

Although Avitabile conceded that he assumed the duties of Village Constable upon his election to the position of Mayor, the decision notes that some five months later he “immediately ceased all duties as Village Constable when he was advised by the Village Attorney that holding both positions simultaneously could present a conflict of interest. The Appellate Division said that Avitabile’s initial decision to serve in that dual capacity may have been imprudent, it did not amount to “unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority.”

Addressing the allegedly defamatory email involving Hayes, the court said that such conduct cannot be deemed an abuse of official power since it occurred prior to Avitabile’s assumption of public office. As to Hayes’ other allegations, the Appellate Division held that they, at best, reflected "minor neglect of duties, administrative oversights and violations of law" that do not warrant removal from office.

Concluding that the alleged conduct did not rise to the level required for removal of a public officer from his or her office, the court said that Avitabile was “entitled to a summary determination dismissing [Hayes’] petition on the merits.”

The decision is posted on the Internet at:

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/

Challenging Adverse Personnel Decisions 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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