Greco v. Jenkins

• Citation: 127 A.D.3d 1269,6 N.Y.S.3d 318,2015 N.Y. Slip Op. 02815
• Decision Date: 02 April 2015
• Docket Number: 518276.
• Parties: In the Matter of Michael GRECO et al., Petitioners, v. Gordon C. JENKINS, as Mayor and Village Manager of the Village of Monticello, Respondent.
• Court: New York Supreme Court Appellate Division

127 A.D.3d 1269
6 N.Y.S.3d 318
2015 N.Y. Slip Op. 02815

In the Matter of Michael GRECO et al., Petitioners
v.
Gordon C. JENKINS, as Mayor and Village Manager of the Village of Monticello, Respondent.

518276.

Supreme Court, Appellate Division, Third Department, New York.

April 2, 2015.

6 N.Y.S.3d 319

Orseck Law Office, PLLC, Liberty (Kirk O. Orseck of counsel), for petitioners.

Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY and LYNCH, JJ.

Opinion

GARRY, J.

127 A.D.3d 1269

Proceeding initiated in this Court pursuant to Public Officers Law § 36 to remove respondent from the offices of Mayor and Village Manager of the Village of Monticello.

6 N.Y.S.3d 320

Petitioners, who are residents of the Village of Monticello in Sullivan County, commenced this proceeding in this Court seeking to remove respondent from the offices of Mayor and Village Manager pursuant to Public Officers Law § 36. Respondent moved to dismiss the petition. This Court denied the motion and referred the matter to a Referee to conduct a hearing and report his findings and recommendations (118 A.D.3d 1248, 989 N.Y.S.2d 153 [2014] ). During the hearing, petitioners offered testimony from a Village Trustee, an Assistant District Attorney, two Village police officers and a Village employee, as well as submitting affidavits and other evidence. Respondent was present and represented by counsel during the hearing, but offered no testimony or evidence on his own behalf. Following the hearing, the Referee issued a report recommending the removal of respondent from office. Petitioners move to confirm the Referee's report, and respondent cross-moves to disconfirm the report and dismiss the petition.

Public Officers Law § 36 provides a means by which a public

127 A.D.3d 1270

officer for a town or village may be removed for “unscrupulous conduct or gross dereliction of duty or conduct that ... connotes a pattern of misconduct and abuse of authority” (Matter of Price v. Evers, 45 A.D.3d 1075, 1076, 845 N.Y.S.2d 553 [2007] [internal quotation marks, brackets and citations omitted] ). To warrant removal, an official's misconduct must amount to more than minor violations and must consist of “self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” (Matter of Chandler v. Weir, 30 A.D.3d 795, 796, 817 N.Y.S.2d 194 [2006] [internal quotation marks and citations omitted]; accord Matter of Salvador v. Ross, 61 A.D.3d 1163, 1164, 876 N.Y.S.2d 754 [2009] ). When this matter was previously before this Court, we found that certain allegations against respondent, if proven, would demonstrate a sufficiently serious pattern of abuse of authority and misbehavior to warrant his removal (118 A.D.3d at 1250, 989 N.Y.S.2d 153 ). In a detailed report, the Referee determined that respondent had committed a number of acts of misconduct that were sufficient to warrant 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 of Yonkers, 304 N.Y. 436, 440, 108 N.E.2d 371 [1952] [internal quotation marks and citation omitted]; accord Matter of DeFalco v. Doetsch, 208 A.D.2d 1047, 1050, 617 N.Y.S.2d 415 [1994] ) and, upon our independent review, we find that removal is warranted.

The first of the allegations referenced in this Court's earlier decision was a claim that respondent had refused to provide funding for the Village police department in an effort to influence the disposition of certain criminal charges against him (118 A.D.3d at 1250, 989 N.Y.S.2d 153 ). During the hearing, an affidavit from Village Trustee Carmen Rue was entered into evidence in which Rue averred that she witnessed respondent telling the Village Police Chief 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 nature to rebut this claim. The Referee found that he had made the remark, and that he did so in an effort to link the treatment of his criminal charges with Village financial matters. Such a credibility determination by a referee is “entitled to great weight” (Slater v. Links at N. Hills, 262 A.D.2d 299, 299, 691 N.Y.S.2d 101 [1999] ). It

6 N.Y.S.3d 321

bears noting that the evidence did not establish that respondent actually withheld funds from the police department. Although the record reveals that the police department did lack funding for certain necessary services—including a functioning heating system in the police station—the testimony indicated that such funding decisions were typically made by the Village Board of

127 A.D.3d 1271

Trustees as a whole rather than by respondent alone, and that the funds may have been unavailable for budgetary rather than coercive reasons. Nonetheless, even if the threat was not ultimately carried out, we find that respondent's attempt to influence the disposition of criminal charges against him by threatening to use his public office to withhold municipal funding constituted a clear abuse of authority.

Petitioners next allege that respondent sought “to use his position as Mayor and Village Manager to obtain ‘special treatment’ from the Village's police department with respect to his...