Held v. Hall

• Decision Date: 18 March 2002
• Citation: 191 Misc.2d 427,741 N.Y.S.2d 648
• Parties: LUCILLE HELD et al., Petitioners,<BR>v.<BR>DAVE HALL, Also Known as DAVID HALL, Respondent.
• Court: New York Supreme Court

191 Misc.2d 427

741 N.Y.S.2d 648

LUCILLE HELD et al., Petitioners,

v.DAVE HALL, Also Known as DAVID HALL, Respondent.

March 18, 2002.

J. Henry Neale, Jr., White Plains, for petitioners.

Piscionere & Nemarow, P.C., Rye (Anthony G. Piscionere, Jr., of counsel), for respondent.

OPINION OF THE COURT

JOHN P. DIBLASI, J.

"In a republican government, like ours, * * * political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections" (Ku Klux Cases, 110 US 651, 666 [1884]). At issue in this CPLR article 78 proceeding is whether the right of the residents of a county legislative district to be represented in their local government should continue to be impeded by the personal interest of a recently elected county legislator who wishes to serve in that capacity while retaining his position as the Police Chief of a municipal police department. Because respondent's acceptance of a seat on the Westchester County Board of Legislators (the County Board), a position incompatible with that of Police Chief of his town/village, constituted a resignation of the latter position by implication (see, Matter of Smith v Dillon, 267 App Div 39, 43 [3d Dept 1943]), so that he ceased to be a Police Chief on December 3, 2001, this proceeding is resolved without a court-imposed remedy.

I. Relevant Factual Background

Respondent is the Chief of Police of the Town/Village of Harrison Police Department (the HPD), a position to which he was appointed in 1997, after serving as a member of the HPD since 1972. As Police Chief he supervises approximately 70 police officers in their enforcement of the law in the Town/Village of Harrison (the Town). It is conceded that in his position, he "has some discretionary powers and duties" (answer, para 4), and that "public safety programs of the Town/Village of Harrison have received small sums of money for the DARE program, in the past, as do all municipalities in Westchester County" (id., para 5),^[1] which money is provided as a consequence of adoption of the county operating budget (the County Budget) by the County Board.

In 2001 respondent was a candidate for the elected position of county legislator, representing District 6, which includes the Town/Village of Harrison and the Villages of Port Chester and Rye Brook (the Sixth District). He was elected to that position in November 2001. Both during the campaign and following his election, respondent steadfastly maintained that it was his intention to retain his position as Chief of Police of the HPD while serving as county legislator for the Sixth District.

On or about December 3, 2001, after his election was certified by the Westchester County Board of Elections, respondent executed and filed his oath of office as a member of the County Board. Thereafter, he began taking part in County Board committee meetings and has acted as a county legislator representing the Sixth District subject, most recently, to the limitations imposed by a preliminary injunction issued by this court, as discussed below. In response to his actions, on or about December 21, 2001, petitioners commenced an action at law in which they sought a judgment declaring that respondent may not serve as a county legislator "while he also holds a salaried public office as the Police Chief of the Town/Village of Harrison" (petition, at 6).

II. Procedural History

Following service of their summons and complaint upon respondent, but prior to his service of an answer, petitioners moved by order to show cause dated January 4, 2002 for a preliminary injunction barring "[respondent] from exercising any of the powers as a Member of the Westchester County Board of Legislators vested in him by the Westchester County Charter (although he may attend meetings of the County Board and its various legislative committees in a non-voting capacity and may receive his salary as Member of the County Board) while this action is pending and until a final judgment is entered * * *." (Order to show cause, at 1-2.) Respondent opposed the motion and cross-moved for dismissal of the complaint on several procedural grounds.

Upon consideration of the arguments put forth on the cross motions, the court rendered a decision and order entered January 29, 2002 (the January 29th decision) which, inter alia, granted petitioners' motion and denied the cross motion in its entirety (Held v Hall, 190 Misc 2d 444 [Sup Ct, Westchester County 2002]). Specifically, the court issued a preliminary injunction,

"pending further order of this Court or the final resolution of this proceeding, or until [respondent] resigns his position as Chief of Police of the Town of Harrison, whichever occurs first, [which] * * * prohibited and enjoined [him] from exercising any of the powers as a member of the Westchester County Board of Legislators conferred upon him by the Westchester County Laws, except that he may attend meetings of that board and its various legislative committees in a non-voting capacity and may receive his salary as a member of that board." (Decision and order, Jan. 29, 2002, slip op, at 29.)

The court conditioned the issuance of the preliminary injunction upon petitioners' joint posting of an undertaking in the sum of $5,000, which was subsequently posted by them in cash.

The January 29th decision also converted petitioners' declaratory judgment action to a CPLR article 78 proceeding in which the parties, originally designated as plaintiffs and defendant, are deemed petitioners and respondent, respectively, and deemed the summons and complaint to be a notice of petition and petition, respectively. In addition, the court established a schedule for the filing of further papers in the CPLR article 78 proceeding. The court specifically provided that respondent could serve, in addition to his answer to the petition, any other "supporting papers and legal memorandum" (id. at 28).

Although the January 29th decision directed that the issues presented in this proceeding would be considered on the papers only, the court subsequently determined that it would be appropriate to hear oral argument from the parties. That oral argument was conducted on the adjourned date of this proceeding, March 6, 2002. At the argument (the March 6th oral argument) the court confirmed that the only paper submitted in opposition to the petition was a two-page verified answer, not supported by any affidavits or memorandum of law.^[2] Following the court's consideration of the arguments of the parties in open court and in their respective papers, it addresses the issues presented.

III. Discussion

"As a general rule, county legislators may hold any other public office or be employed in the public sector unless, inter alia, the offices or the office and employment are incompatible at common law" (Matter of Dupras v County of Clinton, 213 AD2d 952, 953 [3d Dept 1995]) or the dual office holding is barred by constitutional provision or statute (see, Matter of Dykeman v Symonds, 54 AD2d 159, 162 [4th Dept 1976]). In this proceeding, as noted, petitioners assert both of these grounds in support of their view that respondent cannot continue to serve as county legislator and chief of police. First, they claim that the two offices are incompatible under the common law. Second, they maintain that Local Law No. 10 (1970) of the County of Westchester § 107.31 (4) (hereinafter Local Law 10) bars respondent from holding the two offices. Although respondent maintained at the March 6th oral argument that there is a relationship between the two grounds, the court addresses them separately.

A. Common-Law Bar

"Incompatibility between two offices[] is an inconsistency in the functions of the two" (People ex rel. Ryan v Green, 58 NY 295, 304 [1874]). It "has been said to exist when there is a built-in right of the holder of one position to interfere with that of the other, as when the one is subordinate to, or subject to audit or review by, the second" (O'Malley v Macejka, 44 NY2d 530, 535 [1978]). As is recognized, the harm presented in such situations, where "both posts [are] held by the same person, [is that] the design that one act as a check on the other would be frustrated" (see, id.).

Although application of the doctrine is not without difficulty, incompatibility may be seen to arise in two separate settings. The first is "where the relations of the one are * * * inconsistent with or repugnant to the other" (see, Town of Ramapo v Watton, 90 Misc 2d 914, 916 [Sup Ct, Rockland County 1977]). The second is where one office is subordinate to the other, such that "they must, per se, have the right to interfere, one with the other" (see, People ex rel. Ryan v Green, supra, 58 NY at 305).

Clearly, there is no inconsistency or repugnancy between the two positions respondent seeks to retain in this case. In his elected office, respondent will be acting as the representative of the people of the Sixth District in their local legislative body. It cannot be credibly denied that in that position he will exercise no review or control of the actions of the person holding the office of Police Chief of the HPD (see, O'Malley v Macejka, supra, 44 NY2d at 535 [local real property assessor not barred from serving on County Board of Representatives by incompatibility doctrine because "neither local assessors nor county legislators review each other's work"]; see also, 1994 Ops Atty Gen No. I 94-1030, *1 [town police officer may hold position of village trustee of village within the town because "Village trustees are the legislative body of the village" while "Town police officers are responsible for law enforcement within the town, including any villages therein"]; cf., Town of Ramapo v Watton, supra, 90 Misc 2d at 917 [position of village trustee incompatible with that of member of Village Board of Assessment Review because challenges to assessments would be reviewed by trustees]).

It is the alternative incompatibility setting...