Thomas v. New York Temporary State Commission on Regulation of Lobbying

• Citation: 442 N.Y.S.2d 632,83 A.D.2d 723
• Parties: In the Matter of Paul E. THOMAS, Respondent-Appellant, v. NEW YORK TEMPORARY STATE COMMISSION ON REGULATION OF LOBBYING et al., Appellants-Respondents.
• Decision Date: 23 July 1981
• Court: New York Supreme Court — Appellate Division

Page 632

442 N.Y.S.2d 632

83 A.D.2d 723

In the Matter of Paul E. THOMAS, Respondent-Appellant, v. NEW YORK TEMPORARY STATE COMMISSION ON REGULATION OF

LOBBYING et al., Appellants-Respondents.

Supreme Court, Appellate Division,

Third Department.

July 23, 1981.

Robert Abrams, Atty. Gen. (William J. Kogan, Asst. Atty. Gen., of counsel), for appellants-respondents.

Ronald H. Sinzheimer, Albany, for respondent-appellant.

Before MAIN, J. P., and CASEY, MIKOLL, YESAWICH and HERLIHY, JJ.

MEMORANDUM DECISION.

Cross appeals, by permission, from an order of the Supreme Court at Special Term, entered November 26, 1980 in Albany County, which, in a proceeding pursuant to CPLR article 78, directed a trial to resolve certain factual issues underlying the petition.

On March 14, 1980, petitioner was fired from his position as an associate counsel with respondent New York Temporary State Commission on Regulation of Lobbying, and he thereafter commenced the instant CPLR article 78 proceeding for an order reinstating him as an associate counsel to the commission, for back wages and benefits, for punitive damages in the amount of $50,000 pursuant to section 1983 of title 42 of the United States Code and for attorney's fees. At Special Term, the court found certain of petitioner's claims to be without merit, and as to his other claims, it transferred the matter to the nonjury trial calendar for resolution of various triable issues of fact pursuant to CPLR 7804 (subd. Both petitioner's and respondents' motions for permission to appeal Special Term's order were later granted by a justice of this court.

Initially, we find that petitioner's dismissal without a hearing violated neither section 75 of the Civil Service Law nor procedural due process. Nothing contained in the record indicates that petitioner's position as associate counsel was included within a class covered by the protective provisions of section 75 (see Civil Service Law, § 75, subd. 1). Similarly, while petitioner asserted that his "termination has reflected adversely on reputation and position as an attorney" and "done substantial damage to career both as a lawyer and government employee", he failed to allege public dissemination by respondents of the reasons for his dismissal and this failure was fatal to his claim for a name-clearing hearing (cf. Prasad v. Merges, 65 A.D.2d 663, 409 N.Y.S.2d 815, app. dsmd. 46 N.Y.2d 939, 415 N.Y.S.2d 1028, 386 N.E.2d 1340, cert. den. 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82; see, also, Matter of Carter v. Murphy, 80 A.D.2d 960, 437 N.Y.S.2d 344 [1981]).

There is likewise no merit to petitioner's arguments that his First Amendment rights were violated by his dismissal and that this gave rise to a cause of action under section 1983 of title 42 of the United States Code. The specific reasons stated by respondents for petitioner's dismissal, i. e., disloyalty and conflict of interest, clearly justified the termination and did not constitute an impermissible abridgement of petitioner's speech (cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15). Surely, the members of the respondent commission were warranted in discharging an associate counsel to the commission when the person in question was, at the time of his employ with the commission, also actively assisting one of the lobbying organizations which the commission was established to regulate (see L.1977, ch. 937, § 4). In any event, petitioner has not asserted a cognizable claim under section 1983. Neither the State (14 C.J.S., Supp., Civil Rights, § 129; see Brody v. Leamy, 90 Misc.2d 1, 393 N.Y.S.2d 243) nor a department of State government, such as the...