Alberti v. County of Nassau
| Decision Date | 30 September 2005 |
| Docket Number | No. 02-CV-2542 (DRH)(ETB).,02-CV-2542 (DRH)(ETB). |
| Parties | Rita ALBERTI, Michael Califano, Frank M. Franzese, Jr., Peter J. Nigra, and Peter Visconti, Plaintiffs, v. COUNTY OF NASSAU, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Louis D. Stober, Jr., Esq., Garden City, NY, for Plaintiff.
Lorna B. Goodman, Nassau County Attorney, by Nancy Nicotra, Esq., and Donna A. Napolitano, Esq., Mineola, NY, for Defendant.
The above-captioned Plaintiffs are all registered and active Republicans who were employed by Nassau County until their termination in December 2001 or January 2002 by the then newly-elected Democratic county administration. The Plaintiffs allege that the incoming administration based their terminations solely upon political affiliation, in violation of the First Amendment and New York Labor Law § 201-d. The Plaintiffs also claim that the incoming administration's refusal to compensate them for accrued "compensatory time" was a "violation of 42 U.S.C.1983," the Fair Labor Standards Act, and Section 3.30(b) of the Nassau County employee benefits handbook. Finally, the Plaintiffs allege that the manner in which their termination was executed violated Nassau County Administrative Code § 22-2. Nassau County has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is granted.
Plaintiff Rita Alberti is an attorney, and served as "Counselor" in the Nassau County Office of Housing and Intergovernmental Affairs, which receives federal housing funds. Alberti Depo at 41. In this capacity, she reviewed legal documents received by the Office, drafted legal forms, answered subpoenas, did legal research for "the people who ran the Section 8 program," and served as "liason to the Legislature." Deft. R.56.1 Statement ¶ 15, and Pltf. R.56.1 Statement ¶ 15, Alberti Depo at 41. In the latter capacity, she says, she sat in the audience during Legislative sessions and answered any of the legislators' "basic" questions regarding the Housing Office; but if the issues raised were not "within the realm of the ordinary," the Commissioner or Director would answer instead. Alberti Depo. at 44-45. Alberti did not supervise anybody else in this role, and was the only Counselor in the Housing Office, which, she says, retained outside counsel to work on litigation already in progress when she arrived, and to handle "major loans." Alberti Depo at 43. Alberti's salary in this position was $75,000, Alberti Depo at 48, and she was exempt from protection under New York's Civil Service Law. Pltf. Memo at 23.
Plaintiff Michael Califano served as Nassau County's "Manager of Budget Analysis." Deft. Exh. A. He was appointed to this position in 1983 by then-County Executive Fran Purcell. Califano Depo at 10. His resume states that in this capacity, he served, from 1983 until his termination, as "budget examiner" for eight county departments, and a "member of the negotiating team for Nassau County." Pltf. Exh. 4. According to Califano, as Manager of Budget Analysis, "I would review the budgets that were submitted by the various departments that I was responsible for," including recreation and parks, culture development, police department headquarters, ... correctional center, sheriff. Califano Depo. at 10-11. According to Califano, his duty as far as the submitted budgets was "[t]o review the reasonableness of the requests that are coming in," particularly whether a department's request was notably larger than in the previous year's budget. Califano Depo. at 14. Califano further indicated that after his review of budgetary requests, the Budget Director would often decide that certain requests were unreasonable and instruct him to pare down such requests by a certain percentage. Califano Depo at 17-18.
Califano also sat on the "Capital Committee," which "used to review requests made by the department of capital projects," and "approv[ed] equipment for the various departments." Califano Depo at 11. According to Califano, when a department would put in a request to purchase equipment, "myself and a group of other people would discuss the projects that they were asking for." Califano Depo at 11. Califano states that his Committee only "review[ed] the items [requested] just to see if they looked like they were reasonable," and if so, would "[f]orward it on to the Senior Committee who would then make the decision as to whether or not they would be purchased." Califano Depo at 13. Califano would then attend the "senior committee" meetings, which were closed to the public, ostensibly as an observer. Califano Depo at 13. Califano also attended meetings of the Legislature, and as a member of the Capital Committee, he alone was assigned by the Budget Director to "represent" the Budget Department at "county negotiations." Califano Depo at 18, 21. "Representing," according to Califano, simply meant "being there" and "listening." Califano Depo at 21.
In 1995, Califano moved to the County's Correctional Center, although he apparently remained an employee of the Budget Office. Califano Depo at 22. Califano was chosen for the correctional center job after interviewing with then-County Executive Thomas Gulotta, who appointed him on the spot. Califano Depo at 27-28. Califano described his duty at the Correctional Center as "review[ing] the correctional center budget," and where appropriate, recommending staff increases to reduce overtime costs. Califano Depo at 23. Califano also stated that he attended "management meetings" with the sheriff, closed to the public. Califano Depo. at 25. While Califano states that at these meetings "[w]e ... reviewed different policies that they had at the correctional center," he also states that "I was more a spectator there," and simply "trying to educate myself as to what they were doing." Califano Depo. at 25. Califano states that as "liaison between the correctional center and the county," "[i]f the budget director wanted to get to the sheriff, say anything to him, he would tell me and [I] in turn would go to the sheriff." Califano Depo at 26. At the correctional center, Califano had no staff under him, nor supervisors over him. Califano Depo at 26.
Califano was exempt from protection under the Civil Service Law. Pltf. Oppn. at 23. While he had earned roughly $69,000 annually as Budget Examiner, upon commencement of his work at the correctional center, his salary was raised to $76,000, following negotiations with Gulotta, who "felt that I had earned it." Califano Depo at 27.
Plaintiff Frank M. Franzese, Jr. served as "Assistant to the Coordinator of Housing." Pltf. Exh. 7. According to Franzese's resume, his duties as Assistant included "[a]ssist[ing] the Commissioner of Housing in the administration of over $21 million of federally funded housing projects," and "[s]upervis[ing] staff of over 40 employees and direct[ing] outside consultants and subcontractors in the determination of the proper administration of the guidelines and directives set forth by the U.S. Department of Housing and Urban Development." Pltf. Exh.7. According to Franzese's deposition testimony, as Assistant to the Coordinator, he "assisted the commissioner or the coordinator," "ma[de] sure that whatever the commissioner wanted was done," and "did whatever had to be done, and [] did it according to the regulations," and "[b]ased on [the Commissioner's] decisions, [] carried out his requests." Pltf. R.56.1 Statement ¶ 57. He also "offered his opinions on certain suggestions by the Coordinator." Pltf. R.56.1 Statement ¶ 58. At the time of his terminations, Franzese's annual salary was $70,000, and he was exempt from protection under New York's Civil Service Law. Franzese Depo at 30; Pltf. Memo at 24.
Plaintiff Peter J. Nigra is a self-described "CPA with over 30 years of diverse experience." Pltf. Exh.8. At the time of his termination, his official title was "Budget Examiner for Nassau County," in which capacity he worked with several Nassau County departments. His duties included "prepar[ing] monthly projections, analyz[ing] their expenditures, control[ling] their spending by approving or disapproving of their purchases, pass[ing] supplemental appropriations, [and] do[ing] board transfers on various line items when needed based on my knowledge of the department and their needs and their projections." Nigra Depo. at 24. Nigra explained that "every purchase that [a] department made would need to be approved by the budget examiner who was handling that particular department," and as one such examiner, "I would have the right to question purchases that were being made and to give approval on those purchases if I saw the need within the department and if I saw that they were staying within their budget." Nigra Depo. at 29-30. Thus, Nigra Depo. at 29. Nigra described one of his job duties as "enforcing the county executive's budget." Nigra Depo. at 31. Nigra's salary at the time of his termination was apparently $56,732, see Pltf. Exh. 17, and he was exempt from protection under New York's Civil Service Law. Pltf. Oppn. Memo at 24.
Plaintiff Peter Visconti is an attorney admitted to the New York Bar. Deft. Exh.7. His official title at termination was "Legislative Liaison," Deft. Exh. A, a position that had been offered to him through a personal telephone call from then-County Executive Gulotta. Visconti Depo. at 13. Visconti described his duties as follows: ...
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