County commissioner in New Mexico removed from office under color of Section 3 of the 14th Amendment to the Constitution of the United States

Section 3 of the Fourteenth Amendment to the Constitution of the United State provides as follows:

§3. "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

New Mexico's Albuquerque Journal reporter Ryan Boetel notes that a state judge in New Mexico removed a county commissioner found guilty of participating in the January 6, 2022 invasion of the Capitol of the United States in federal district court under color of said §3.

With respect to public officers of New York State and its political subdivisions, the State Attorney General has opined that a public officer appointed for fixed statutory term may be removed prior to the expiration of the term only for cause and is entitled to due process protection prior to dismissal [Opinions of the Attorney General 88-49]. In the event an individual is "not entitled to a hearing under Civil Service Law, §75 or any other statute," the Attorney General further observed "a hearing must derive from the due process clause of the Constitution (NY Const, Art 1, §6; US Const, 14th Amendment)."

The Attorney General explained that "... courts have held that a public employee threatened with dismissal is entitled to due process protections if he has acquired a liberty or property interest in his employment; that is, a legitimate entitlement to continued employment," citing Economico v Village of Pelham, 50 NY2d 120, Elrod v Burns, 427 US 347, and Board of Regents v Roth, 408 US 564. 

Opinions of the Attorney General 88-49 also notes "The U.S. Supreme Court has stated that the sufficiency of a claim of entitlement must be made by reference to appropriate State or local laws", citing Bishop v Wood, 426 US 341. 

Click HERE to access the full text of Mr. Boetel's article published in the Albuquerque Journal posted on the Internet.

 

School District's motion to dismiss the causes of action alleging a student was sexually molested by an employee of the school district denied

In this action to recover damages, the complainant [Plaintiff] alleged that he was sexually molested by his guidance counselor, who was an employee or special employee of the defendant [School District].  Supreme Court denied School District's motion to dismiss the causes of action alleging "negligence, gross negligence, negligent hiring, retention, supervision, and direction, and breach of fiduciary duty insofar as asserted." 

The School District appealed the Supreme Court's ruling.

Explaining that on a motion to dismiss for failure to state a cause of action under CPLR §3211(a)(7) the Appellate Division said that a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" and denied School District's appeal.*

The amended complaint alleged, among other things, that the School District had prior notice of the guidance counselor's propensity to sexually molest students and that the School District "nevertheless permitted the guidance counselor to meet one-on-one with students, including the Plaintiff, and that the School District thereby negligently failed to prevent the guidance counselor from sexually molesting the Plaintiff."

Further, said the Appellate Division, Supreme Court properly found that the Plaintiff sufficiently pleaded causes of action alleging negligence, gross negligence, and negligent hiring, retention, supervision, and direction, citing Moskowitz v Masliansky, 198 AD3d 637 and other decisions.

* The Appellate Division noted "[c]auses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity".

Click HEREto access the Appellate Division's decision.

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