Decided on November 27, 2013 Supreme Court, Orange County

Robert T. Moser, Petitioner, For a Judgment and Order Pursuant to Article 78 of the CPLR against Jacob S. Tawil, as Commissioner of Public Works for the City of Middletown, N.Y. and THE CITY OF MIDDLETOWN, N.Y., Respondents.

6334/2012

Jonathan Lovett, Esq. Attorney for Petitioner 305 Old Tarrytown Road White Plains, NY 10603 Vincent P. D'Andrea, Esq. Thomas, Drohan, Waxman, Petigrow & Mayle, LLP Attorneys for Respondents City of Middletown and Jacob S. Tawil 2517 Route 52 Hopewell Junction, NY 12533 Paul I. Marx, J.

In this Article 78 proceeding, Petitioner Robert Moser seeks a Judgment and Order vacating, nullifying and/or declaring unlawful Respondent's termination of his employment as a part-time Code Enforcement Officer for the City of Middletown. Respondents contend that petitioner's termination was proper and lawful due to its decision to eliminate the position of part time Code Enforcement Officer for budgetary reasons. Respondent cross-moved, in lieu of answer, to dismiss the petition under CPLR 3211 (a)(1) and (a) (7). In his Petition, Petitioner alleged that he was entitled to a pre-deprivation hearing under Civil Service Law 75 because he held permanent, competitive civil service status in that position. See Petition, Exhibit 2. Initially, Respondent did not contest that Section 75 applied but contended that petitioner was not entitled to a hearing because his position was abolished for budgetary reasons. Respondent sought not only dismissal of the petition, but summary judgment as well. BACKGROUND

By Decision and Order dated March 26, 2013, this Court expressed concern that it appeared that the Mayor of Middletown did not have the authority to abolish the part [*2]time Code Enforcement Officer position held by petitioner and that the elimination of petitioner's position was done by mayoral fiat. Indeed, as observed by this Court, respondents' papers reflected that the decision to terminate petitioner's position [FN1] and his actual termination came on the same day; apparently after the Mayor decided that the position should be abolished. [FN2] Conspicuous by their absence from respondents' papers was any resolution of any other governing body that made any substantive inquiry or determination that the City's budget required this part time position to be eliminated. Nor did respondents submit any minutes of any public hearing at which the decision was discussed. Finally, it should be noted that respondents also asserted, through the affidavit of Joseph Masi, the Administrator for the Civil Service Commission of the City of Middletown, that petitioner should never have held the position of part time Code Enforcement Officer because "in accordance with the Middletown Civil Service Rules, no employee may hold two (2) competitive class positions in the City." Affidavit of Joseph Masi dated November 12, 2012 at para. 10. In the Decision and Order, I noted that a municipality can abolish a position if it does so in good faith for reasons of economy and efficiency, citing Switzer v Sanitary District No. 7, Town of Hempstead, County of Nassau, 59 AD2d 889, 890 [2nd Dept 1977]. I held that because Respondents asserted that termination of the position was based on legitimate budgetary reasons, "... petitioner has the burden of showing that there was not a bona fide reason to abolish the position, or that a financial saving was not accomplished by the elimination of the position, or that another person was hired in his place, or some other indicia of bad faith." Decision and Order dated March 26, 2013 at p.3. If the Mayor acted without authority and then attempted to justify it by backfilling a rationale after the fact, a reasonable inference of bad faith could be drawn. However, if the Mayor's action in abolishing the position of part time Code Enforcement Officer was ultra vires , that is, without authority, that action would be void and the question of bad faith need not be reached. I directed a hearing to be held to determine whether the elimination of petitioner's position as a part time Code Enforcement officer was proper. I also directed the parties to submit further papers in support of their respective contentions. On May 24, 2013, a hearing was held before me to explore the issues raised in this proceeding. Petitioner, Middletown Mayor Joseph DeStefano, and Middletown Corporation Counsel Richard Guertin testified at the hearing. At the close of the hearing, the parties were directed to submit simultaneous post-hearing memoranda and to provide the Court with a copy of the transcript of the proceedings no later than July 22, 2013. Counsel jointly requested, and were granted, two extensions of time to submit their memoranda; until August 30, 2013 and September 9, 2013. This matter is [*3]now fully submitted and ripe for decision. As more fully set forth below, I hold that the Mayor's action in eliminating the position of part time Code Enforcement Officer in the City of Middletown was unauthorized by law and, as such, is a nullity. Thus, Petitioner's application for an Order pursuant to Article 78 vacating, declaring, nullifying and/or declaring respondent's termination from his employment is granted in all respects. The cross motion to dismiss is denied in all respects. FACTS The following facts are not in dispute: Petitioner is a permanent civil service employee holding the position of part time Code Enforcement Officer for the City of Middletown. Petition, 6-9. Petitioner held that position from March 3, 2008 through April 26, 2012. Petitioner simultaneously held the position of Fire Fighter for the City of Middletown. Both positions are in the civil service classification of "competitive class". Respondent's post hearing submission at p. 2. Mayor Joseph DeStefano was elected to a second non consecutive term as Mayor of Middletown effective January 1, 2010; having served in that capacity from 1994 through 2005. From 1984 through 1992, DeStefano served as an Alderman for the City. Id. On April 27, 2012, respondent Jacob S. Tawil, Commissioner of Public Works, advised petitioner that effective April 30, 2012, he would no longer be scheduled to work as a part time Code Enforcement Officer. Petition. 10, Exhibit 3. Subsequently, Mr. Tawil issued a "Report of Personnel Change" that reflected that petitioner had been terminated from his position. At no time prior to the termination of petitioner's employment was Petitioner served with disciplinary charges as would be required under Civil Service Law 75. Id. 12 Petitioner was not given a pre-deprivation hearing prior to termination. Id. 13. Decision dated March 26, 2013 at p.2. Termination of Petitioner's part time position was not the result of a legislative resolution. Tr. p.7. Neither the Board of Estimate and Apportionment ("Board" or "Board of Estimate") nor the Common Council adopted a resolution abolishing the position. Id. THE PARTIES' CONTENTIONS Petitioner's Contentions

Petitioner contends that the Mayor's abolition of the position of part time Code Enforcement Officer was improper and that he is entitled to be reinstated to that position with back pay. [FN3] [*4] He contends, generally, that although the Middletown City Charter is silent as to who or what entity has authority to create or abolish a position, the Mayor still lacks authority to do so. He contends further that the absence of specific authority conferring such power on the Mayor necessarily grants the power in those who must fund it, the legislature; reasoning that because the funding for any position must be the result of a legislative act, so must the de-funding. Petitioner also points to an apparent inconsistency in the respondents' justification for the termination of the position. On the one hand, he notes, the Mayor testified that he has unilateral authority to abolish positions; on the other hand, he notes that the Mayor also testified that he told Tawil to abolish the position. Tr. p.44. Interestingly, Commissioner Tawil reported petitioner's cessation of employment as a "lay-off"; yet the only document generated in connection with the elimination of petitioner's position was a "report of Personnel Change" which cited the basis as a "removal", not lay-off. In addition, petitioner notes that in the letter advising him of his termination, Tawil did not advise him that the position had been eliminated only that he would no longer be scheduled to work as of the following Monday . Next, petitioner asserts that respondents' claim that the basis for the abolition of the position was to save the City from potential exposure to a claim by petitioner that he was entitled to overtime pay is fictitious. In this regard, he notes that respondents called no witness to demonstrate that this was a valid concern; relying instead on the Mayor's "understanding" that the possibility of exposure to such a claim existed if petitioner was permitted to retain both his Fire Fighter and part time Code Enforcement positions. He notes that respondents submitted only Mr. Masi's affidavit to support that rationale and highlights the fact that no specific provision of the Civil Service Law has been cited to support his contention. Hence, he concludes, this rationale is a red herring designed to create the air of an issue that does not exist or that respondents did not demonstrate by competent evidence. In this regard, I note that petitioner testified that when he was hired for the part time Code Enforcement position, he was told there was "no problem" with holding two civil service positions simultaneously. In fact, he held both positions simultaneously for years without any apparent concern by governmental officials. Finally, petitioner contends that the Mayor has conceded that he lacks authority to abolish a position since he testified that if he desires to create a position, he must submit a budgetary request to the Common Council and if he desires to appoint a person to that position he must confirm that it has been funded. Tr. 31-32. These statements, according to petitioner, compel the conclusion that abolition of a position, i.e. , de-funding, also lies in the ambit of the authority of the Common Council. Respondents' Contentions Respondents contend: (1) that the protections of Civil Service Law 75 do not apply to this case; (2) that petitioner has failed to prove that the Mayor acted in bad faith; (3) that the doctrine of legislative equivalency is inapplicable in this case; (4) that [*5]the Mayor's authority is not limited by Section 54(d) of the Middletown City Charter; and (5) that the decision to abolish the position was based on a sound basis and was neither arbitrary nor capricious. Respondents contend that because the Mayor has, and his predecessors in office have, in the past abolished positions, without challenge, he a fortiori has that power. [FN4] They contend that petitioner has failed to prove that the position was eliminated as a result of bad faith and, therefore, petitioner cannot prevail in this proceeding. Further, they contend that because the City Charter is vague with respect to who/what entity creates positions, the doctrine of legislative equivalency is inapplicable to this matter. Post hearing submission at p.12. DISCUSSION First, I am struck by the inconsistency between the Mayor's testimony at the hearing as to who initiated the idea that the part time Code Enforcement Officer position should be eliminated and the affidavit he submitted in support of the cross motion to dismiss. In his affidavit, the Mayor attested that: "In or about April 2012, the Commissioner of Public Works, Jacob Tawil, ("the Commissioner") recommended to me that the City abolish the part time Code Enforcement position, as the continuation of Petitioner's services had the potential of creating deficits in the budget for Code Enforcement by exposing the City to significant overtime costs. I accepted that recommendation and abolished the position effective April 27, 2012." DeStefano Affidavit, attached to cross motion at paragraph 5. At the hearing, the Mayor testified, and respondents argued in their post hearing submission as well, that it was he who initiated the idea of terminating the position based on concerns of overtime and other budgetary considerations including the then impending 2% tax cap. No mention was made that Commissioner Tawil made any recommendation pertaining to the part time Code Enforcement position. Hence, the Mayor's hearing testimony is at odds with his affidavit. See Tr. p.34-35. Surprisingly, petitioner's counsel did not explore this inconsistency on cross examination. Nevertheless, it is of significance to this Court that respondents' explanation of the rationale for eliminating the position may represent revisionist history.

In addition, Respondents fail to recognize the illogic of one of their arguments. On the one hand, respondents argue that Commissioner Tawil asked the Mayor to hold off on the elimination of the part time position until a different employee could return from an injury related absence so that the department could maintain its productivity. On the other hand, respondents argue that once that employee decided to retire, the part time position was also unnecessary. This makes no sense. While one could appreciate holding off on terminating a part time employee until a full time employee returned to assume the part timer's work load, once the full time employee decided to [*6]retire, terminating the part timer would compound the problem, not remedy it. Nevertheless, respondents contend that after being asked by Mr. Tawil to hold off the termination of the part time position until the return of an injured employee, upon learning that the full time employee intended to retire, the Mayor decided that the part time position was expendable. The pretzel logic of this argument escapes this Court's grasp. The Charter The City of Middletown Charter is not a model of clarity on this issue, as respondents freely admit. However, what clearly emerges from a review of the Charter provisions is that the Mayor does not have the unilateral power to create new positions or to abolish existing positions. In fact, the Mayor does not even have the unilateral power to discharge an employee from his or her position. Title II, Section 54(d) provides that the Mayor has "the right and duty", amongst others duties, "[t]o suspend, for cause, any officer appointed by said council or any officer, appointee or employee of said city, for a term not exceeding thirty days." It is apparent from the remainder of this section that this is an emergency power conferred upon the Mayor, which is subject to approval and final action by the Common Council. In the first instance, the Mayor is required to "give written notice [of the suspension] to the [C]ommon [C]ouncil at its next meeting thereafter, stating therein the grounds of such suspension, together with such recommendationas he may deem proper." Id. (emphasis added). The Common Council then follows up on the Mayor's written recommendation with an investigation into the matter. Thereafter, the Common Council "may, in its discretion, restore or dismiss said officer or employee and declare his office, appointment or employment vacant and terminated ...". Id. The powers and duties of the Mayor are enumerated in Section 54 of the Charter. Among the powers enumerated in that section is the power to "administer the oath of office to the aldermen elect and communicate to the common council, at least once a year, a general statement of the finances ... his views and recommendations with reference to the city government." 54(a) (emphasis added). The Mayor also has the power to "call out and command the police and firemen", 54(b); to "caus[e] the ordinances of the city and the laws of the state to be executed and enforced within said city", 54(c); to "suspend, for cause, any officer ... appointee or employee of said city", as noted above, 54(d); to "appoint any person ... to perform the duties ... of the officer suspended, until the matter ... [is] investigated and determined", 54(e); and to "examine the books, vouchers, papers of any department, officer or employee ... and to summon and examine, under oath, any person connected therewith", 54(f). Notably absent from the enumeration of the Mayor's powers under Section 54, or anywhere else in the Charter, is the power to create or abolish positions. The Charter provides that the Board of Estimate, of which the Mayor is but a single member, is the body that determines the powers and duties of the City's officers and employees. The other two members of the three-person Board are members of the Common Council. Section 64 of the Middletown City Charter provides, in pertinent part: The Board of Estimate and Apportionment shall consist of the Mayor who shall be its President, the President of the Common Council and the [*7]Chairman of the Finance Committee of the Common Council. ... Each act of the Board shall be by resolution adopted by a majority vote of its members. The Board shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees, except as otherwise provided in this act, but no such salaries or compensation shall be effective until approved by the Common Council. " (Emphasis added) The above language of the Charter provides that the quasi-legislative Board has the power to create all positions within the City that were not already created in the Charter, [FN5] subject to the Common Council funding the position. This section does not give that power solely to the Mayor, nor does it give the Mayor veto power over the decision of the two legislative members of the Board. The decision is made by the Board and "each act of the Board" must be "by resolution adopted by a majority vote of its members". Id. (emphasis added). Despite this, Corporation Counsel, Richard Guertin [FN6], testified that in his opinion, the Mayor, as Chief Executive Officer of the City has the implied if not the expressed authority to abolish positions. In response to the Court's question, the Corporation Counsel testified as follows: Q "So I am clear ... so I understand it, it's your view as the corporation counsel of the City of Middletown that there is no language in the City Charter that either gives the mayor unilateral authority to create or unilateral authority to abolish positions; is that right? A "That's correct. In fact, there is nothing that gives that to anyone specifically. So if a position is to be created or to be abolished, perhaps for no other reason than common sense, but I think that if you look at the mayor's position as chief executive officer he manages the executive branch. He manages the employment force of the City. Ultimately, he is the he is the one who has control. Certainly Common Council controls the purse strings. The Board of Estimate certainly has involvement in that, but it is the Mayor who manages and that's why I come to that

interpretation." Tr. p. 73. [*8] While I endorse whole heartedly the use of common sense in government it is quite apparent that there is not enough of that in government at all levels common sense is not the sine qua non of executive powers; especially where, as here, there is a City Charter that sets forth the powers and authorities of each branch of government. As the portion of the City Charter which I have highlighted above demonstrates, " the Board shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees, ..., but no such salaries or compensation shall be effective until approved by the Common Council." City Charter, 64 (emphasis added). Hence, contrary to the Corporation Counsel's "common sense" approach to expanding the powers of the Mayor, the City Charter places the power to create positions within the City of Middletown with the Board. Clearly, a position is created only when the three-member Board, by resolution, "fixes [its] powers and duties" and determines the salary and compensation attendant to it. Simply put, there is nothing more to creation of a position than setting forth its duties and powers and setting its compensation save, perhaps, naming it. [FN7] Since it is without contradiction that the Board did not act to eliminate petitioner's position prior to his being notified of the termination, any attempt to terminate the position was without authority. That this is so cannot be seriously challenged for the law in this state is that where a position is created by the act of a governmental body, it must be abolished in like fashion. See Matter of Torre v County of Nassau, 86 NY2d 421, 426 [1995] ("a position created by resolution adopted by a City Council may not be abolished by a City Commissioner" (citing Matter of O'Rourke v Graul, 261 App Div 87, 90 [3rd Dept 1941], affd 285 NY 755 [1941])); Matter of Gallagher v Regan, 42 NY2d 230, 233234 [1977] (an office created by ordinance must be abolished by ordinance and not by resolution; creation and abolition must be effected by an action of equal significance). Recently, in The Matter of Civil Service Employees Association, Inc. v County of Orange, 107 AD3d 983 [2nd Dept 2013], the Appellate Division, Second Department, had occasion to review a determination by the Orange County Executive to "abolish" certain positions and terminate employees, ostensibly for financial reasons. In reversing the Supreme Court's denial of the affected employees' petition and subsequent dismissal of same, the Court restated that the "doctrine of legislative equivalency requires that a position created by a legislative act can only be abolished by correlative act." Id. at 985, citing Matter of Torre, supraat 426; Matter of Chandler v Village of Spring Valley , 104 AD3d 847 [2nd Dept 2013]; Matter of Campana v Chiseri, 242 AD2d 716 [2nd Dept 1997]. In Matter of Civil Serv. Empls. Assn., supra, the Orange County Executive, on [*9]October 1, 2010, directed that letters be sent to 39 civil service employees notifying them that their positions were being eliminated for "economic reasons", effective October 29, 2010. Subsequently, on December 2, 2010, the Orange County Legislature passed a budget that did not provide funding for the laid off employees. In response, the Civil Service Employees Association, Inc. and 34 of the affected 39 employees commenced a combined Article 78 and declaratory judgment proceeding whereby they sought to have the terminations annulled and a declaration that they were entitled to reinstatement and back pay. Supreme Court denied the petition and dismissed the proceeding. In reversing, the Appellate Division noted that the Orange County Charter and Orange County Administrative Code provided that only the County Legislature could "establish or abolish positions of employment and titles thereof". Noting that the County Legislature had not abolished the positions, the Court held that, although the County Executive was granted authority to "supervise, direct and control and administer all departments" by the County Charter and Administrative Code, they did not give the authority to terminate the employment of civil service employees without proper abolition of the positions by the County Legislature in accordance with the doctrine of legislative equivalency. In addition, the Court noted that the County Charter did not authorize the County Executive to take "remedial action" such as a unilateral modification of the budget and/or abolition of legislatively created positions. Hence, the Court concluded, the County Executive lacked authority to terminate the employees' positions for economic reasons and remitted the matter to Supreme Court for correction. In the case at bar, curiously, the City of Middletown Charter, unlike the County Charter in Matter of Civil Serv. Empls. Assn., makes no provision whatsoever for the elimination of positions. As a result, the City's Corporation Counsel testified, and the City's trial counsel argued, past practices dictate that because the Mayor has always asserted that authority, he must, of necessity, possess it. I disagree. As stated by me at the hearing, simply because the City has allowed its Mayor to exercise power to eliminate positions in the past does not render that practice proper. The law is clear, as reaffirmed by Matter of Civil Serv. Empls. Assn., that where a position is created by a governmental body, it can only be eliminated by that body in the same manner in which it was created. Here, the subject position, part-time Code Enforcement Officer, was created by the Board. Thus, as petitioner argues, it can only be eliminated by the Board. Indeed, had the drafters of the City Charter intended that the power to create and abolish positions be in the office of the Mayor, they could have provided for such. Such powers are conspicuously absent from Section 54 of the Charter which details the Mayor's powers and duties. Any effort by the Mayor to aggrandize his powers beyond those conferred by the City Charter is impermissible. Having reached the conclusion that the elimination of the part time Code Enforcement Officer position held by petitioner was improper, petitioner is entitled to the relief sought. Thus, the petition is granted in all respects and the cross motion to dismiss is denied in all respects.

The foregoing constitutes the Decision and Order of the Court. The parties are directed to appear before the undersigned on December 20, 2013 at 9:15 a.m. for a preliminary conference regarding discovery in connection with a [*10]damages hearing. Petitioner shall settle a judgment in accordance with this decision on no less than 5 days notice within 30 days of the date hereof. The parties are directed to retrieve thematerials which were admitted into evidence and retained by the Court at the conclusion of the hearing within 20 days of the date hereof. Dated: November 27, 2013 Goshen, NY

HON. PAUL I. MARX, J.S.C. To:Jonathan Lovett, Esq. Attorney for Petitioner 305 Old Tarrytown Road White Plains, NY 10603 Vincent P. D'Andrea, Esq. Thomas, Drohan, Waxman, Petigrow & Mayle, LLP Attorneys for Respondents City of Middletown and Jacob S. Tawil 2517 Route 52 Hopewell Junction, NY 12533 Footnotes

Footnote 1:Petitioner was/is the only part time Code Enforcement Officer employed by the respondent. Footnote 2:Petitioner was notified on April 27, 2012, a Friday , that his position was eliminated effective April 30, 2012, the following Monday . Footnote 3:In footnote 24 of his post hearing submission, petitioner concedes that because the position of part time Code Enforcement Officer was not funded in the budget subsequently adopted by the City, his damages may be limited to back pay from the date of his termination to the date the legislative body de-funded the position. His concession in this regard is conditioned on an assumption, arguendo, that there was no provable bad faith, lack of financial savings or other factual basis to conclude that the abolition was unlawful. I do not conclude that respondents acted in bad faith, despite their after the fact rationalization for their actions. However, the Common Council's decision to de-fund the position was insufficient to abolish it. Therefore, notwithstanding petitioner's concession, his damages are not limited by the Common Council's action in de-funding the position. Footnote 4:As explained more fully below, this ipse dixit approach to governing and management is untenable and unsupported by law. Footnote 5:A number of City officer positions are created in Section 3 of the Charter: "[t]he officers of said city shall consist of one Mayor and one Alderman-at-Large ...; two Aldermen to be elected in each ward; one Corporation Counsel, once Assistant Corporation Counsel, one Commissioner of Public Works, three Deputy Commissioners of Public Works, one Commissioner of Assessment and Taxation, one City Clerk, Registrar and Clerk of the Common Council, one Treasurer; police officers such as may be appointed and such other officers as are hereinafter or otherwise duly authorized who shall be appointed as hereinafter or otherwise duly provided; also one Chief of the Fire Department, and three assistant chiefs, one secretary and one treasurer of the Fire Department ... ." Section 3 authorizes the creation of other officer positions. Footnote 6:An appointee of Mayor DeStefano. Footnote 7:Although the position must then be funded if its creation is to have any practical effect, the creation and

funding of a position may be separate acts, as they are here. In fact, it is not uncommon for a municipality to retain positions that, depending on a number of factors, including the amount of funds available in its budget, may remain vacant and unfunded in a given budget cycle or cycles. In that circumstance, the de-funding of a position is not equivalent to abolition of the position.