In the Matter of Chandler v. Weir, 98974.

• Decision Date: 15 June 2006
• Docket Number: 98974.
• Parties: In the Matter of CHRISTOPHER CHANDLER, Petitioner, v. MARK WEIR, as Fly Creek Fire District Commissioner, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

30 A.D.3d 795

817 N.Y.S.2d 194

2006 NY Slip Op 04903

In the Matter of CHRISTOPHER CHANDLER, Petitioner, v. MARK WEIR, as Fly Creek Fire District Commissioner, et al., Respondents.

98974.

Appellate Division of the Supreme Court of the State of New York, Third Department.

June 15, 2006.

Proceeding initiated in this Court pursuant to Public Officers Law § 36 to remove respondents from certain offices in the Fly Creek Fire District in Otsego County.

Cardona, P.J.

Petitioner, a resident of the Fly Creek Fire District in Otsego County, commenced this proceeding seeking to remove respondents, Mark Weir and Elizabeth A. Staffin, from their respective positions as Commissioner and Treasurer of the Fire District. The petition alleges that Weir improperly directed Staffin to issue a check payable to the attorney for the Fire District and that Staffin improperly complied with his directive. The petition further alleges that Weir removed a confidentiality notice from a letter that the attorney wrote to the Fire District Commissioners and revealed its privileged contents at a public meeting. In addition, two Commissioners aver, in affidavits affixed to the petition, that Staffin ignored the duties of her office by failing to make financial records available pursuant to Freedom of Information Law (see Public Officers Law art 6) requests and delayed in depositing funds and providing a current accounting. Respondents move to dismiss the petition for failure to state a cause of action and we grant that motion.

It is well settled that, in order to state a cause of action under Public Officers Law § 36, a petition must allege that a public officer engaged in "`self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust'" (Matter of Morin v Gallagher, 221 AD2d 765, 766 [1995], quoting Matter of Deats v Carpenter, 61 AD2d 320, 322 [1978]; accord Matter of McCarthy v Sanford, 24 AD3d 1168, 1168-1169 [2005]). The record reveals that Weir publicly directed Staffin to pay the bill under what he believed to be a preexisting retainer agreement with the Fire District's attorney and that Staffin complied without requiring signatures from the other Commissioners present at the meeting. Even assuming that respondents did not strictly follow the procedure for authorizing payments (see Town Law § 176 [4-a]; § 177), removal from office is "a remedy which is reserved for malicious and corrupt acts as compared to minor neglect of duties,...