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CATTERSON v. CASO

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK


June 29, 1979

James M. CATTERSON, Plaintiff,
v.
Ralph G. CASO, Robert J. Sweeney and Robert L. Ryan, Defendants

The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

In this action, plaintiff, James M. Catterson, Jr., alleges violations of his rights under the First and Fourteenth Amendments and under 42 U.S.C. §§ 1983, 1985, 1986, and 1988. In addition, plaintiff alleges violations of New York State law. The court's jurisdiction is based on 28 U.S.C. §§ 1331 and 1343.

 Plaintiff is an attorney and a resident of Suffolk County. He was appointed County Attorney of Nassau County, effective January 1, 1976, by defendant Ralph G. Caso, who at that time was the County Executive of Nassau County. Section 13-1.0 of the Nassau County Administrative Code ("Administrative Code") requires that except under certain circumstances, a county employee must be a resident of Nassau County for one year prior to the date of his appointment. *fn1" Defendant Caso, pursuant to Section 13-1.0(c), submitted to the Nassau County Civil Service Commission a one year waiver of the residency requirement for plaintiff. The waiver was effective January 1, 1976. On December 30, 1976, plaintiff was notified that his position as County Attorney was terminated effective midnight, December 31, 1976. Plaintiff claims that he was terminated for unlawful reasons.

 Assuming for the purposes of this motion that the allegations in plaintiff's complaint are true, in the latter part of 1976 defendant Caso announced that he would seek the Republican nomination to succeed himself as Nassau County Executive when his term of office expired on December 31, 1977. In order to further his candidacy, Caso sought to enlist the support of various Republican Party members and municipal officials, including that of the plaintiff. Caso requested the plaintiff to speak in favor of his candidacy to the Nassau County Republican Chairman. Plaintiff informed Caso that he did not intend to support his candidacy and refused to speak to the Republican chairman in Caso's behalf.

 On or about December 23, 1976 defendant Caso directed plaintiff to appoint defendant Robert J. Sweeney to the office of chief deputy county attorney which was to become vacant on December 31, 1976. Plaintiff complied with this directive on December 30, 1976. Subsequently, plaintiff was informed that his position as county attorney was terminated effective at midnight December 31, 1976. Sweeney succeeded plaintiff as county attorney.

 Plaintiff contends that he was dismissed from his position without cause and for the sole purpose of punishing him for refusing to support Caso's candidacy. He asserts that his termination was designed to intimidate other public office holders in Nassau County into supporting Caso's candidacy. Plaintiff also contends that defendants Sweeney and Ryan *fn2" aided and abetted Caso and conspired with him to have plaintiff dismissed from his position.

 Plaintiff's complaint charges that he was dismissed in violation of his First and Fourteenth Amendment rights to freely affiliate himself with the candidate of his choice. He also alleges that he was terminated in violation of his right to due process. He further claims that under state law, the defendants jointly and severally have committed a prima facie tort, libel per se, slander and defamation of character, civil conspiracy, and have violated N.Y. Civil Service Law § 107 and N.Y. Penal Law § 105.05.

 Defendants originally moved to dismiss plaintiff's cause of action pursuant to Fed.R.Civ.P. 12(b). Because the court had before it matters outside the pleadings which it wished to consider, it informed the parties that it was treating defendants' motion as one for summary judgment.

 Political Affiliation Claim

 Plaintiff claims that the First and Fourteenth Amendment accorded him the right to support the candidate of his choice for the Republican nomination for the office of Nassau County Executive and that his dismissal solely because of his failure to support defendant Caso for that nomination was in contravention of his constitutional rights. His claim is based on the Supreme Court's decision in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).

 Because Elrod was a plurality decision, the holding of the concurring Justices generally has been viewed as the holding of the court. See Alfaro de Quevedo v. De Jesus Schuck, 556 F.2d 591 (1st Cir. 1977); Tanner v. McCall, 441 F. Supp. 503 (M.D.Fla.1977); Ramey v. Harber, 431 F. Supp. 657 (W.D.Va.1977), Aff'd in part, rev'd in part, 589 F.2d 753 (4th Cir. 1978). See generally Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). But see Judge Broderick's analysis in Finkel v. Branti, 457 F. Supp. 1284, n.9 at 1289-90 (S.D.N.Y.1978), Aff'd, 598 F.2d 609 (2d Cir. 1979), Cert. granted, 443 U.S. 904, 99 S. Ct. 3095, 60 L. Ed. 2d 871 (1979), as to why Elrod may be read more broadly than the concurring Justices' holding. The holding of the concurring Justices was that "a nonpolicymaking, nonconfidential government employee can(not) be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs." Elrod v. Burns, supra 427 U.S. at 375, 96 S. Ct. at 2690 (Stewart, J., concurring).

 At issue in Elrod was the practice of the newly elected sheriff in Cook County, Illinois to replace all non-civil service employees in the sheriff's office who were not members of his own Democratic Party and who were not sponsored by one of the party leaders. The Court found that the patronage dismissals infringed upon the employees' First Amendment right to affiliate themselves with the political party of their choice. However, the Court recognized that the political loyalty of government employees may be necessary in order to avoid a situation where the implementation of an elected administration's policies is obstructed for partisan reasons. In order to balance these conflicting interests, the Court in Elrod limited its holding to prohibiting patronage dismissals of nonpolicymaking, nonconfidential employees. Those government employees who occupy policymaking or confidential positions may be dismissed for political reasons.

 It is clear to this court that the First Amendment rights discussed in Elrod are broad enough to encompass the right to support the candidate of one's choice without fear of being dismissed for doing so. Therefore, the sole issue before the court with respect to plaintiff's political affiliation claim is whether or not he was a policymaking or confidential employee. *fn3" The court finds that the office of Nassau County Attorney is a policymaking, confidential position and, therefore, plaintiff's termination did not violate his First and Fourteenth Amendment rights.

 While Mr. Justice Brennan's plurality decision recognizes that "no clear line can be drawn between policymaking and nonpolicymaking positions", Elrod v. Burns, supra 427 U.S. at 367, 96 S. Ct. at 2687 it does set forth general guidelines:

 

An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.

 Id. at 368, 96 S. Ct. at 2687.

 The nature and scope of the responsibilities and duties of the Nassau County Attorney are set forth in Article XI, §§ 1101 *fn4" and 1102 *fn5" of the County Government Law of Nassau County ("County Government Law") and in Chapter XI, § 11-3.0 *fn6" of the Administrative Code. These enactments establish that the Nassau County Attorney has considerable discretion in operating his office. County Government Law § 1101 gives him the authority to appoint "such deputies, officers and employees of his office as may be provided by ordinance." Therefore he has the final say in determining the makeup of his staff.

 In addition, the county attorney has broad discretion in exercising his responsibilities. These responsibilities are considerable. The county attorney represents the county, and all its departments, officers, institutions, and agents, in all litigation, draws contracts, ordinances, and resolutions, and acts as legal adviser to the county. And while some of the county attorney's actions are subject to the authorization and supervision of the county executive and the county board of supervisors, those restrictions do not serve to limit the broad discretion that must necessarily be accorded an attorney representing his client. The court concludes that because plaintiff's responsibilities as county attorney were broad and not well-defined, See Elrod v. Burns, supra 427 U.S. at 367-68, 96 S. Ct. 2673, and because he had considerable discretion with regard to the orientation and operation of his office, See Finkel v. Branti, supra 457 F. Supp. at 1291, his position was one of a policymaker. Therefore, he could be dismissed for political reasons without violating his First Amendment rights.

 Even if the court were not to find that plaintiff occupied a policymaking position, it would find that his dismissal was constitutional. As county attorney, plaintiff stood in a confidential relationship with the officers of the political body whose legal interests he represented. The confidential relationship between an attorney and his client is based on trust. When political differences subverted the personal and intimate relationship that should have existed between plaintiff as county attorney and defendant Caso as the chief executive officer of the county, Caso was justified in dismissing plaintiff. See Besig v. Friend, 460 F. Supp. 134 (N.D.Calif.1978) (importance of loyalty and trust between executive and cabinet level officers *fn7" ). Moreover under these circumstances, the important public interest in permitting the county executive, an elected official, to effectively implement his policies outweighed plaintiff's First Amendment rights. See Newcomb v. Brennan, 558 F.2d 825 (7th Cir.), Cert. denied, 434 U.S. 968, 98 S. Ct. 513, 54 L. Ed. 2d 455 (1977) (right of city attorney to dismiss his deputy).

 Accordingly, it was constitutionally permissible to dismiss plaintiff from his position as county attorney for political reasons.

 Due Process Claim

 Plaintiff's claim that his dismissal deprived him of property without due process of law *fn8" is without merit. A property interest in employment can be created by contract, by ordinance, or by implied contract. To determine the sufficiency of the claim, the court must look to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).

 Plaintiff has alleged no contractual or implied contractual basis for his claim that he had a property interest in his office as county attorney. County Government Law § 1101 provides no term of office for the county attorney. Plaintiff was appointed by Caso pursuant to County Government Law § 203, which also provides that the county executive may remove his appointees "at his pleasure" and that such decisions shall be final. See also N.Y.Const. art. 13, § 2; Gallagher v. Griffin, 93 Misc.2d 174, 402 N.Y.S.2d 516 (Sup.Ct., Erie Co. 1978). Under these circumstances, plaintiff cannot be said to have had a sufficient expectation of continued employment to constitute a protected property interest. Bishop v. Wood, supra; Board of Regents v. Roth, supra; Perry v. Sindermann, supra; Ause v. Regan, 59 A.D.2d 317, 399 N.Y.S.2d 526 (4th Dep't 1977).

 In addition, plaintiff has failed to allege that there was a public disclosure of the reasons for his dismissal. In the absence of such a disclosure, a public employee whose position is terminable at the will of his employer may be discharged without a hearing. Bishop v. Wood, supra 426 U.S. at 348, 96 S. Ct. 2074. Accordingly, plaintiff's due process claim must be dismissed.

 Section 1985 Claim

 Plaintiff alleges in a conclusory manner that the defendants engaged in a conspiracy to deprive him of his constitutional rights. Since the court has found that plaintiff's First and Fourteenth Amendment rights were not violated by his dismissal, there would appear to be no basis for his claim that the defendants conspired to deprive him of those rights. In any event,

 

plaintiff was bound to do more than merely state vague and conclusionary allegations respecting the existence of a conspiracy. It was incumbent upon him to allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.

 Powell v. Workmen's Compensation Board, 327 F.2d 131, 137 (2d Cir. 1964). Since he has failed to do this, his conspiracy cause of action must be dismissed. Id. Cf. Koch v. Yunich, 533 F.2d 80, 85-86 (2d Cir. 1976); Fine v. City of New York, 529 F.2d 70, 73 (2d Cir. 1975).

 State Law Claims

 Having found that plaintiff's federal claims must be dismissed, the court need not address his claims brought under state law. However, the court finds it appropriate to exercise its pendent jurisdiction over these claims and finds them to be without merit.

 Plaintiff argues that defendants violated N.Y. Civil Service Law § 107 *fn9" when they fired him for political reasons. As the head of the county attorney's office, however, plaintiff was in the unclassified service category of public employees. N.Y. Civil Service Law § 35(e). Section 107 is not applicable to public employees in the unclassified service. See Bass v. Bragalini, 286 App.Div. 944, 143 N.Y.S.2d 494 (3d Dep't 1955); Nowicki v. Heafy, 180 Misc. 184, 44 N.Y.S.2d 482 (Sup.Ct., Westchester Co. 1943). *fn10" Cf. Starr v. Meisser, 39 A.D.2d 712, 331 N.Y.S.2d 896 (2d Dep't 1972); Lawson v. Cornelius, 38 Misc.2d 431, 238 N.Y.S.2d 238 (Sup.Ct., Albany Co. 1963) (Cooke, J.) (public officers such as plaintiff may be dismissed at appointing official's pleasure). Therefore, plaintiff's cause of action under Section 107 must be dismissed.

 Plaintiff also claims that defendants have violated N.Y. Penal Law § 105.05 *fn11" Since plaintiff has failed to allege that the defendants conspired to engage in conduct constituting a felony of any kind, his complaint must be dismissed for failure to state a claim upon which relief can be granted. In any event, this court is without power to enforce the criminal laws of New York State.

 Plaintiff's defamation claim is not alleged with sufficient specificity to withstand a motion to dismiss. CPLR 3016(a) requires the plaintiff in a libel and slander action to set forth the particular words complained of. Plaintiff having failed to do so, his defamation cause of action must be dismissed. See Brandt v. Winchell, 3 N.Y.2d 628, 636, 170 N.Y.S.2d 828, 835, 148 N.E.2d 160 (1958); Schwartz v. Andrews, 50 A.D.2d 1057, 376 N.Y.S.2d 722 (4th Dep't 1975); Randaccio v. Retail Credit Corp., 43 A.D.2d 798, 350 N.Y.S.2d 255 (4th Dep't 1973).

 Plaintiff's civil conspiracy cause must also be dismissed because it is not alleged with sufficient specificity.

 Plaintiff's cause of action for prima facie tort must also be dismissed. To succeed under this cause of action, plaintiff must establish that defendants intentionally inflicted temporal harm upon plaintiff without justification. The damages sustained by plaintiff must be specially pleaded. See Appalachian Power Co. v. American Institute of Certified Public Accountants, 177 F. Supp. 345 (S.D.N.Y.), Aff'd, 268 F.2d 844 (2d Cir. 1959); Brandt v. Winchell, supra. Plaintiff has failed to allege the essential elements for a cause of action under the prima facie tort doctrine. It bears repeating Justice Breitel's words in Ruza v. Ruza, 286 App.Div. 767, 769, 146 N.Y.S.2d 808, 810 (1st Dep't 1955), Quoted in Appalachian Power Co. v. American Institute of Certified Public Accountants, supra : "(A) bad complaint is not made good by the blanket assertion that it relies on the doctrine of "prima facie tort.' " Accordingly, this cause of action must also be dismissed.

 Conclusion

 For all the aforementioned reasons, plaintiff's complaint is dismissed in its entirety. The Clerk of the court is directed to enter summary judgment in favor of the defendants.

 So ordered.


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