Vasquez v. Town Bd. of Town of Waterford

• Decision Date: 21 November 1979
• Citation: 72 A.D.2d 883,422 N.Y.S.2d 142
• Parties: In the Matter of Frank H. VASQUEZ, Appellant, v. TOWN BOARD OF the TOWN OF WATERFORD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 142

422 N.Y.S.2d 142

72 A.D.2d 883

In the Matter of Frank H. VASQUEZ, Appellant, v. TOWN BOARD OF the TOWN OF WATERFORD et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Nov. 21, 1979.

Joseph M. Cairo, Waterford, for appellant.

James H. Glavin, III, Waterford, for respondents.

Before GREENBLOTT, J. P., and SWEENEY, KANE, MAIN and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered January 29, 1979 in Saratoga County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78.

On September 5, 1978 the Town Board of the Town of Waterford adopted "Local Law No. 4 of the Year 1978" which abolished the full time position of Chief of Police and created the part-time office of Public Safety Commissioner. The local law provided that the new position would be filled by the vote of four members of the Town Board, rather than a simple majority of three votes, and that it would become effective upon approval by the voters at the November 7, 1978 general election.

Petitioner, who was the Town's Chief of Police, thereafter commenced this proceeding by order to show cause to declare the local law illegal in all respects; to restrain the Town Board from appointing any person to the new position and from removing petitioner as Chief of Police; and to restrain respondents from placing the local law on the ballot for the November 7, 1978 general election.

The town board of any town may establish a police department and appoint a chief of police (Town Law, § 150, subd. 1), and pursuant to section 10 (subd. 1, par. (ii), subpar. a, cl. (1)) of the Municipal Home Rule Law, a town may abolish its police department (see 1975 Atty. Gen. (Inf.Opns.) 164). Here, however, the Town Board has abolished only the Position of Chief of Police, and has established the position of Public Safety Commissioner which has duties virtually identical to that of Chief of Police.

In his verified petition, petitioner alleges that the Town Board's action was a sham and a subterfuge desired for the sole purpose of removing him from his position in circumvention of his rights under the Civil Service Law. He contends that he was appointed to the permanent Civil Service position of Chief of Police after passing a competitive examination given under the auspices of the Saratoga County Civil Service Commission, and that the Town Board has cited financial economy as the sole reason for abolishing his position when in fact economy would not be promoted. Respondents in their answer merely deny these allegations in conclusory fashion.

We conclude that the matter must be remitted. As was aptly stated by the Second Department:

It is * * * true that a public employer may in good faith abolish positions for reasons of economy and efficiency and that the burden of showing a lack of good faith rests upon the person challenging the validity of the abolition (Matter of Devins v. Sayer, 233 N.Y. 690, 135 N.E. 972; Matter of Wipfler v. Klebes, 284 N.Y. 248, 30 N.E.2d 581; Matter of McCanless v. Brieant, 35 Misc.2d 1018, 231 N.Y.S.2d 995, mod. 19 A.D.2d 736, 242 N.Y.S.2d 841; Matter of Kempf v. Town of Brookhaven, 61 Misc.2d 283, 305 N.Y.S.2d 658, affd 37 A.D.2d 917, 326 N.Y.S.2d 991). A public employer, however, may not abolish a job position as a subterfuge to avoid the statutory protection afforded to civil servants before they are discharged (Wood v. City of New York, 274 N.Y. 155, 8 N.E.2d 316; ...