457 F.Supp. 1284 (S.D.N.Y. 1978), 78 Civ. 14, Finkel v. Branti

Docket Nº78 Civ. 14 (VLB).
Citation457 F.Supp. 1284
Party NameAaron FINKEL and Alan Tabakman, Plaintiffs, v. Peter BRANTI, Jr., as Public Defender, Rockland County, Defendant.
Case DateSeptember 29, 1978
CourtUnited States District Courts, 2nd Circuit

Page 1284

457 F.Supp. 1284 (S.D.N.Y. 1978)

Aaron FINKEL and Alan Tabakman, Plaintiffs,


Peter BRANTI, Jr., as Public Defender, Rockland County, Defendant.

No. 78 Civ. 14 (VLB).

United States District Court, D. New York

Sept. 29, 1978

Freedman, Wray, Wagner & Tabakman, New City, for plaintiffs.

Marc L. Parris, County Atty., The County of Rockland, New City, for defendant.




Plaintiffs, Aaron Finkel and Alan Tabakman, are Assistant Public Defenders ("Assistants") employed by the County of Rockland, New York. Defendant Peter Branti is the Public Defender for Rockland County. Finkel and Tabakman were appointed to their positions as Assistants on March 26, 1971 and September 5, 1975, respectively.

The six-year term of the Public Defender expired on December 31, 1977. Frank P. Barone, a Republican, had served in that position since January 1, 1972. He had been appointed by a Republican-dominated County Legislature. In 1973 the Democrats gained control of the Rockland County Legislature, and in the 1977 election (County legislators serve four-year terms) a Democratic majority was again elected. 1

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Defendant Branti, a Democrat, had been an Assistant District Attorney for Rockland County. He was selected as Public Defender by the Democratic caucus of the County Legislature, and was appointed by the Legislature on January 3, 1978. On that date, he began the process of executing termination notices for six of the nine Assistants who had served under Barone. 2 Plaintiffs were among the six Assistants whose employment Branti sought to terminate.

On January 4, 1978, plaintiffs commenced this action and, by order to show cause, sought a temporary restraining order and a preliminary injunction enjoining defendant from terminating plaintiffs' employment and from attempting to alter plaintiffs' employment status. Plaintiffs alleged that they were non-policymaking, non-confidential government employees who were satisfactorily performing their duties and that, therefore, defendant's attempt to replace plaintiffs on political grounds violated the First and Fourteenth Amendments. 3

On January 4, 1978, I issued the requested temporary restraining order, which was to remain effective pending the development of a factual record at a hearing that was to be held on January 6, 1978. That hearing was held, but the evidence presented was, in my judgment, insufficient to enable me to resolve the difficult issues presented. I scheduled further hearings, which were held on January 24, 25, 26, 27 and 30, and February 8 and 10, 1978. Pursuant to Rule 65, Fed.R.Civ.P., and upon the consent of all the parties, the plenary trial was advanced and consolidated with the hearing on the preliminary injunction.


The question to be decided herein may be narrowly stated as follows: Are plaintiffs non-policymaking, non-confidential government employees who, solely for political reasons, are threatened with removal from jobs they are competent to perform and have been satisfactorily performing? See Elrod v. Burns, 427 U.S. 347, 375, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (Stewart, J., concurring). On the basis of the evidence presented at the hearings and the applicable law, I find that the answer to this question is "yes," and I conclude that defendant Branti must be enjoined from terminating or attempting to terminate plaintiffs' employment upon the sole grounds of their political beliefs. 4

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The Rockland County Public Defender is appointed by the County Legislature for a term of six years. Assistants are appointed by the Public Defender, and they serve at his pleasure. The County Legislature makes appropriations for the salaries to be paid to Assistant Public Defenders.

Plaintiff Finkel has been employed as an Assistant since March 26, 1971, at which time he was appointed by Public Defender Arnold Becker, a Democrat. In January, 1972, Finkel was continued in office by Barone, who was a registered Republican who had been named as Public Defender by the Republican-dominated Legislature after Becker's term had expired. Barone served a full six-year term, and Finkel was an Assistant during that entire period. Throughout the course of his employment as an Assistant, Finkel himself has been a registered Republican. 5

Plaintiff Tabakman was appointed as an Assistant by Public Defender Barone in September, 1975. At that time Tabakman was, and he has since then remained, a registered Republican.

There are some 2,000 public employees in Rockland County, falling into categories of "unclassified" and "classified." The unclassified category consists of teachers and elected officials legislators and the District Attorney. The classified category has four subdivisions:

a) a competitive class with minimum qualifications and competitive civil service examinations;

b) a non-competitive class with minimum qualifications but no examination;

c) a labor class, consisting of unskilled labor.

d) an exempt class, for which no examination is deemed practicable or feasible. [6]

There is no executive in Rockland County; the Legislature performs the function of executive in appointing department heads, and members of the exempt class are generally appointed by a department head. Included in the less-than-50 employees who fall into the exempt class are Assistant County Attorneys, who are appointed by the County Attorney (who is in turn appointed by the Legislature), and Assistant Public Defenders, who are appointed by the Public Defender.

As a practical matter, appointments by the Legislature were decided upon, after the 1977 elections returned a Democratic majority of legislators, by the Democratic caucus. In November and December of 1977, the Democratic caucus of the Legislature decided it would allocate coveted positions on a town basis. The positions covered by these allocations included not only those positions which were clearly within the appointing authority of the Legislature, such as Chairman of the Legislature, County Clerk, County Attorney, and Public Defender, but also positions which were clearly not, such as Assistant County Attorneys and Assistant Public Defenders.

The Chairman of the Legislature and the County Clerk were from the Town of Ramapo, and the County Attorney and the Public Defender, Branti, were from the Town of Haverstraw. The Democratic caucus therefore decided that the attorney positions in the County Attorney's Office and in the Public Defender's Office would be filled by persons selected by the Democratic legislators or Democratic town chairmen

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from Rockland County's towns on the following bases:

Ramapo six attorneys

Clarkstown four attorneys

Orangetown one attorney

Stony Point one or two attorneys

Haverstraw none. 7

The names selected were to be submitted to the appointing authority by the Democratic chairperson of the County.

Branti, after appointment as Public Defender, appointed six new Assistants and retained three who had been in the office under Barone. With one possible exception, all the attorneys appointed or retained by Branti were selected on the basis that had been decided upon by the Democratic caucus. With one exception, all were Democrats.

The names of the nine 1978 appointees for Assistants, their political affiliations, and the way in which the names were submitted are as follows:

(1) John E. Allison; newly appointed submitted by Clarkstown delegation of the Legislature. Democrat.

(2) Lorna R. Bernard; newly appointed submitted by Democratic chairman of Orangetown. Democrat.

(3) Gerard M. Blumenfeld; newly appointed submitted by Harriet Cornell, Chairperson of the Rockland County Democratic Committee. Democrat.

(4) John A. Costa; newly appointed submitted by Clarkstown delegation of the Legislature. Democrat.

(5) Wayne R. Feinberg; newly appointed submitted by Stony Point delegation of the Legislature. Democrat.

(6) John F. McAlevey; retained submitted by Ramapo delegation of the Legislature. Democrat.

(7) John M. McCabe; newly appointed submitted by a legislator from Haverstraw. Democrat.

(8) William K. Nelson; retained submitted by Clarkstown delegation of the Legislature. Democrat.

(9) Manuel Sanchez; retained Frank Mascola, a Republican and Chairman of the County Legislature in 1973, had proposed Sanchez's name to Democratic Legislator Goodfriend of Ramapo. Marilyn Troy, Chairperson of the Clarkstown Democratic Committee, agreed to accept a resume from Sanchez. No party affiliation. 8

In this light it is important to consider the fate of plaintiff Tabakman in comparison with the fate of Manuel Sanchez, whose name finally was submitted. Although, as noted above, Marilyn Troy, the Clarkstown Democratic Committee Chairperson, agreed to accept a resume from Sanchez, she stated that she thought it would be difficult for her to support or assist Tabakman, who had been very active in the campaign of Hon. William Wray, Jr., a Republican, for the position of County Judge. Legislator Goodfriend had expressed the same sentiments with respect to Tabakman.

Despite the pattern that is apparent in the above facts, defendant Branti has contended that he, and not the powers in the Rockland County Democratic Party, was responsible for the appointment of the Assistants, and he has contended that he had particular and non-political motivation for each of his appointments. However, having heard all the evidence and based on the full record, I conclude that no person was considered for a position as an Assistant unless his or her name was submitted in accordance with the procedure decided upon by the Democratic caucus. What defendant Branti retained was, at...

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