| Matter of Greco v Jenkins |
| 2015 NY Slip Op 02815 [127 AD3d 1269] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Michael Greco et al.,Petitioners, v Gordon C. Jenkins, as Mayor and Village Manager of the Villageof Monticello, Respondent. |
Orseck Law Office, PLLC, Liberty (Kirk O. Orseck of counsel), for petitioners.
Sussman & Watkins, Goshen (Michael H. Sussman of counsel), forrespondent.
Garry, J. Proceeding initiated in this Court pursuant to Public Officers Law§ 36 to remove respondent from the offices of Mayor and Village Managerof the Village of Monticello.
Petitioners, who are residents of the Village of Monticello in Sullivan County,commenced this proceeding in this Court seeking to remove respondent from the officesof Mayor and Village Manager pursuant to Public Officers Law § 36.Respondent moved to dismiss the petition. This Court denied the motion and referred thematter to a Referee to conduct a hearing and report his findings and recommendations(118 AD3d 1248 [2014]). During the hearing, petitioners offered testimony from aVillage Trustee, an Assistant District Attorney, two village police officers and a villageemployee, as well as submitting affidavits and other evidence. Respondent was presentand represented by counsel during the hearing, but offered no testimony or evidence onhis own behalf. Following the hearing, the Referee issued a report recommending theremoval of respondent from office. Petitioners move to confirm the Referee's report, andrespondent cross-moves to disconfirm the report and dismiss the petition.
Public Officers Law § 36 provides a means by which a public officerfor a town or village may be removed for "unscrupulous conduct or gross dereliction ofduty or conduct that . . . connotes a pattern of misconduct and abuse ofauthority" (Matter of Price v Evers, 45 AD3d [*2]1075, 1076 [2007] [internal quotation marks, brackets andcitations omitted]). To warrant removal, an official's misconduct must amount to morethan minor violations and must consist of "self-dealing, corrupt activities, conflict ofinterest, moral turpitude, intentional wrongdoing or violation of a public trust" (Matter of Chandler v Weir, 30AD3d 795, 796 [2006] [internal quotation marks and citations omitted]; accord Matter of Salvador vRoss, 61 AD3d 1163, 1164 [2009]). When this matter was previously beforethis Court, we found that certain allegations against respondent, if proven, woulddemonstrate a sufficiently serious pattern of abuse of authority and misbehavior towarrant his removal (118 AD3d at 1250). In a detailed report, the Referee determinedthat respondent had committed a number of acts of misconduct that were sufficient towarrant his removal. Although the Referee's findings are not binding upon this Court,they serve "to inform [our] conscience" (Matter of Gehr v Board of Educ. of City ofYonkers, 304 NY 436, 440 [1952] [internal quotation marks and citation omitted];accord Matter of DeFalco v Doetsch, 208 AD2d 1047, 1050 [1994]) and, uponour independent review, we find that removal is warranted.
The first of the allegations referenced in this Court's earlier decision was a claim thatrespondent had refused to provide funding for the village police department in an effortto influence the disposition of certain criminal charges against him (118 AD3d at 1250).During the hearing, an affidavit from Village Trustee Carmen Rue was entered intoevidence in which Rue averred that she witnessed respondent telling the Village PoliceChief that "the Village Police would not receive desperately needed funding until[certain] criminal charges levied against [respondent] . . . were'resolved.' " Respondent did not present any testimony or evidence of any natureto rebut this claim. The Referee found that he had made the remark, and that he did so inan effort to link the treatment of his criminal charges with village financial matters. Sucha credibility determination by a referee is "entitled to great weight" (Slater v Links atN. Hills, 262 AD2d 299, 299 [1999]). It bears noting that the evidence didnot establish that respondent actually withheld funds from the police department.Although the record reveals that the police department did lack funding for certainnecessary services—including a functioning heating system in the policestation—the testimony indicated that such funding decisions were typically madeby the Village Board of Trustees as a whole rather than by respondent alone, and that thefunds may have been unavailable for budgetary rather than coercive reasons.Nonetheless, even if the threat was not ultimately carried out, we find that respondent'sattempt to influence the disposition of criminal charges against him by threatening to usehis public office to withhold municipal funding constituted a clear abuse ofauthority.
Petitioners next allege that respondent sought "to use his position as Mayor andVillage Manager to obtain 'special treatment' from the Village's police department withrespect to his various criminal charges and has repeatedly threatened various local lawenforcement officials with termination or disciplinary action for pursuing such chargesagainst him" (118 AD3d at 1250). A November 2013 surveillance video submitted withthe petition confirms these claims in part, revealing that, while respondent was detainedovernight in the village police station following his arrest on charges of driving whileintoxicated, he went on a lengthy tirade in which, among other things, he remindedpolice officers that they worked for him, threatened that he would "do somethingtomorrow" about their treatment of him, repeatedly warned that they would be suspendedor would suffer other negative repercussions for detaining him, directed dozens ofobscene remarks and racist insults at the officers, and repeatedly attempted to persuadeone of the officers to place his personal loyalties above his job duties in respondent'sfavor. Two police officers testified, among other things, that, during his detention,respondent told them that they were insubordinate and that they would no longer receiveovertime pay, referenced ongoing contract negotiations related to the officers' salary andjob conditions in a manner that the officers perceived as intimidating, threatened "to holda special [V]illage [B]oard meeting right then and [*3]there" and made numerous statements implying that theofficers would suffer negative consequences for his arrest such as "You guys will pay forthis," "I hired you," and "What goes around comes around."
Respondent does not deny that he made the remarks in question. Instead, he arguesthat his arrest was a pretext resulting from discord with the police department resultingfrom contract negotiations and other political issues, and that his remarks resulted fromanger and frustration arising from the allegedly improper circumstances in which he wasdetained. During respondent's overnight detention, he was handcuffed to a wall for hoursin an uncomfortable position with little room for movement; during part of the video, hecan be seen attempting to sleep on the floor with one arm over his head, still handcuffedto the wall.[FN1]The officers testified, however, that respondent was handcuffed because of his angryoutbursts and refusal to cooperate with the police, and that he could not be held in a cellbecause of the police station's lack of heat. The video does not support respondent'sfurther contention that the police disregarded his repeated requests for an attorney.Instead, it reveals that officers asked respondent for the telephone number of the attorneyhe wished to contact and, when respondent stated that he did not have this information,called respondent's paramour—who was also a Village Trustee—to ask forher assistance in obtaining representation for him. An officer can be heard on the videotelling respondent that the paramour then advised police that an attorney had beenretained on respondent's behalf.
Considering the length of his detention in highly uncomfortable circumstances, somedegree of anger and frustration on respondent's part is understandable; nevertheless, thevideo reveals that many of his objectionable remarks were made shortly after his arrivalat the police station. Respondent offered no evidence to support his claim that his arrestresulted from partisan discord rather than from his own actions; on the contrary, itappears that he later pleaded guilty to a related charge. The Referee found thatrespondent linked his remarks about the union contract negotiations to his arrest in aneffort to secure his release and that he was attempting to "trade off" the negotiations forfavorable treatment. Respondent offered no alternate explanation for these remarks or forhis numerous comments threatening the officers with negative consequences if he wasnot released. We agree that the unrebutted evidence establishes that respondent attemptedto use his public office to intimidate and coerce the officers into giving him specialtreatment, and that such conduct constitutes self-dealing and an abuse of authority.
Finally, this Court previously noted that respondent had allegedly awarded a"suspiciously low" no-bid contract to a local firm to demolish an asbestos-laden buildingowned by the Village and dump the resulting debris, and that these actions had allegedlyexposed the Village to substantial fines and legal fees (id. at 1250 [internalquotation marks omitted]). The testimony at the hearing supported these claims.Rue—who was, as previously noted, a Village Trustee—testified that thebuilding in question, a former courthouse, was demolished in October 2013 and thedebris was illegally dumped in a nearby town. Rue stated that, although she was aTrustee, she did not know that the demolition was scheduled to take place until shereceived a telephone call while it was going on. She confirmed that decisions of thisnature would normally be made by the Board, but stated that the decision to hire this firmto demolish the building was never brought before the Board, that she never saw a bidfor the demolition, and that the Board did not vote on it until several months after it tookplace.
[*4] As Rue explained, the Board and respondenthad previously discussed the topic of demolishing the building and had been advised byan engineer that the demolition would be extremely expensive because the buildingcontained asbestos.[FN2] Notably, the firm that carried out thedemolition was paid only $5,000. Rue testified that respondent made the decision todemolish the building and, when Rue later asked him why he had done so, he did notdeny his involvement and instead falsely insisted that the Board had voted to approve theaction.[FN3] Rue'stestimony that respondent acknowledged his role in making this decision was unrebutted,and no evidence of any nature was produced to demonstrate that the action was approvedby the Board or that respondent had the authority to contract for the transaction.According to Rue, the Village incurred costs of approximately $90,000 to clean up thedemolition and dumping sites, as well as legal fees and other expenses. She furtherasserted that the firm that conducted the demolition had filed a notice of claim against theVillage, contending that it was not advised that there was asbestos in the building beforeit undertook the job. In the absence of any evidence or testimony to rebut theseallegations, the credible proof establishes that respondent improperly contracted for thedemolition without Board approval and, further, despite knowing that the buildingcontained asbestos, directed or permitted the illegal disposition of the debris. Theseactions exposed the Village to substantial costs and liabilities, and respondent thusviolated a public trust.
As we previously found, taken together, these actions "rise to the level of'unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern ofmisconduct and abuse of authority' " (id., quoting Matter of Hayes vAnsel-McCabe, 83 AD3d 1180, 1181 [2011]).[FN4] Accordingly, we confirm the Referee'sreport and conclude that respondent's conduct warrants his removal from office pursuantto Public Officers Law § 36 (see Matter of West v Grant, 243 AD2d815, 815-817 [1997]; Matter of DeFalco v Doetsch, 208 AD2d at 1048-1049;Matter of Williams v Travis, 194 AD2d 969, 969-970 [1993]; Matter ofSmith v Perlman, 105 AD2d 878, 878-879 [1984]). Petitioners' assertions related toPublic Officers Law § 30 (1) (e) are rendered academic by thisdetermination.
Peters, P.J., Lahtinen and Lynch, JJ., concur. Adjudged that the petition and motionto confirm the Referee's report are granted, without costs, cross motion to disconfirm anddismiss the petition denied, and respondent is hereby removed from the public offices ofMayor and Village Manager of the Village of Monticello.
Footnote 1:Respondent's detentionwas briefly interrupted when officers transported him to a hospital for a medicalexamination after he complained of heart palpitations.
Footnote 2:Rue testified that theengineer told the Board that it would cost $2,500,000 "to demolish the building and fixthe main building first," but did not clarify what portion of this figure was related to thedemolition.
Footnote 3:On cross-examination,Rue acknowledged that other unidentified individuals could have participated withrespondent in making the demolition decision, but she did not waver from her claim thatrespondent was, at minimum, involved in the decision and that no official Boardapproval was obtained.
Footnote 4:We limit thisdetermination to those matters that were addressed in our prior decision, althoughpetitioners alleged various additional acts of misconduct, arguing that these also justifiedrespondent's removal, and the Referee made findings pertaining to some of these furtherallegations. This Court's determination "should not be construed as either accepting orrejecting those portions of the [Referee's] report that are not expressly adopted herein"(Matter of DeFalco v Doetsch, 208 AD2d at 1050).