Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office
2016 NY Slip Op 04420, Appellate Division, Second Department
The Village Board [Village] adopted a resolution appointing its Village Clerk/Treasurer [Clerk] for a two-year term. Village subsequently advised Clerk that it had suspended her with pay following her arrest for allegedly “shoplifting” and ultimately adopted a resolution terminating Clerk's “employment by the Village.”
Clerk commenced a CPLR Article 78 action seeking a court order compelling Board to reinstate her to her office retroactively with full back pay, alleging, among other things, that Village’s action terminating her from office was arbitrary and capricious, and in violation of Public Officers Law §36. Village answered the petition and subsequently moved to dismiss the proceeding.
Supreme Court, without deciding the merits of Clerk’s petition, determined that the Village did not raise any objections in point of law that could terminate the entire proceeding, denied the Village's motion to dismiss Clerk’s petition and transferred the proceeding to the Appellate Division.
The Appellate Division opined that, as the challenged determination by Village was not made after a quasi-judicial evidentiary hearing, Supreme Court erred in transferring the matter to it. However, “in the interest of judicial economy,” the court elected to retain jurisdiction and determine the issues raised by Clerk on their merits.
Considering the relevant law, the Appellate Division ruled that Village lacked the authority to remove Clerk, a Village officer, from her position by adopting a resolution to that effect.
The court explaining that a Village officer could only be removed from his or her office in accordance with the procedure set forth in Public Officers Law §36, noting that §36 provides, in relevant part, that any 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."
Further, §36 provides that “Such application [to the Appellate Division in the appropriate judicial department] 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.”
The Village’s action to terminate Clerk from her public office by adopting a resolution so doing was, in effect, a nullity as Village lacked the authority to remove Clerk from her public office by resolution. As no application to the Appellate Division to remove Clerk from her office had been made as mandated by Public Officers Law §36, the Appellate Division granted Clerk’s petition to the extent that Village’s action was annulled and the matter remitted to the Supreme Court to determine the appropriate remedy.
The decision is posted on the Internet at:
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