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August 23, 1979


The opinion of the court was delivered by: SAND

Plaintiff alleges that the actions of defendants, the Ulster County Community Action Committee, and the members of its Board of Directors individually, in dismissing him from his position as Executive Director violated his constitutional rights to due process of law under the Fifth and Fourteenth Amendments. Plaintiff further asserts that individual members of the Board conspired to deprive him of those rights in violation of 42 U.S.C. § 1985. *fn1"

Defendants move for dismissal of the action under F.R.Civ.P. 12(b)(1) or 12(b) (6) or, alternatively, for a grant of summary judgment. For the reasons hereinafter stated, we grant defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted.

 FACTS *fn2"

 The defendant, Ulster County Community Action Committee, Inc., ("UCCAC") was formed in 1965 as a New York not-for-profit corporation to act as the private entity responsible for administering and coordinating anti-poverty activities in Ulster County. *fn3"

 Plaintiff was hired as Executive Director of UCCAC in February, 1975. In the summer of 1975 plaintiff questioned the legality of the existing Board of Directors and expressed his concern to a representative of the Community Services Administration ("CSA"), a federal agency charged with general oversight responsibility for anti-poverty corporations receiving federal funds. Plaintiff alleges that many Board members held their positions in violation of UCCAC's by-laws in that they either were not elected to their positions, or that they had forfeited their positions due to lack of attendance at meetings, or that their terms had expired.

 On June 13, 1975, plaintiff advanced $ 5,000 in UCCAC funds to James Billups, an employee of the Ulster County YMCA, who was then serving as Chairman of UCCAC's Board of Directors. Billups represented to the plaintiff that the funds were to be used by the YMCA to operate a summer youth program, a representation that was subsequently proven false. Plaintiff did not immediately inform the Board of the loan. It is undisputed that the plaintiff still had not informed the Board of the outstanding advance on September 10, 1975, when the Board voted that plaintiff had satisfactorily completed his probationary period as Executive Director. On November 25, 1975, $ 2,000 was delivered to UCCAC's offices in partial payment of the June advance to Mr. Billups.

 During the months of October and November, 1975, plaintiff and Mr. Billups became interested in purchasing a vacant church in the hope of renovating it as a permanent center for anti-poverty activities. Together with some other UCCAC Board members and members of the community served by UCCAC, they organized a corporation for the purpose of acquiring the church and leasing space to the anti-poverty organizations under their control. According to the plaintiff, he needed a $ 4,500 reserve to assure the successful financing of the downpayment on the church and sought an advance on his salary in that amount. He directed Mary Lou Rowland, the fiscal officer of UCCAC, to investigate the possibility of delaying payment of the organization's bills in order to generate sufficient cash to cover such an advance.

 On December 3, 1975, Rowland notified plaintiff that she would not arrange the $ 4,500 advance on plaintiff's salary, citing the poor fiscal health of the organization. Plaintiff then suspended and sought to dismiss Rowland for her refusal to investigate the possibility of such a plan.

 At a regular Board meeting on December 10, 1975, the Board members challenged plaintiff's actions in seeking to dismiss Rowland. In addition, having learned of plaintiff's loan to Billups, the Board at the same meeting criticized plaintiff for having made the advance without the Board's knowledge. Plaintiff responded by assuring the Board that the Billups advance had been fully repaid. However, the final payment on the loan was not recorded until the following day, December 11, when a cashier's check for $ 3,000 was deposited to UCCAC's account. Plaintiff now contends that the repayment was made in cash on December 10 and that he converted it to a cashier's check and deposited it on December 11. The December 10 meeting adjourned amidst vigorous disagreement.

 On December 15, the Board met in the absence of plaintiff and Billups to consider the Executive Director's actions. The Board prepared a series of charges against plaintiff and personally delivered them to him on December 17, 1975. The Board sought to hold a formal hearing on the charges on December 18, but postponed it to January 7, 1976, at the request of plaintiff's counsel. Although plaintiff then chose not to attend the January 7 meeting, the Board met and voted to dismiss him as of January 9, 1976.

 Plaintiff now contends that he did not attend the January 7 meeting because there were not enough valid members of the existing Board to legally function on internal matters, and that as a special meeting, it was not summoned in conformity with UCCAC's by-laws. Further, plaintiff contends that a fair hearing was impossible at that meeting due to the "irrational climate already exhibited (at the December 10 meeting)." *fn4"

 Plaintiff appealed the Board's decision to the CSA. While acknowledging that three of the Board members were not legally entitled to sit, CSA ruled that plaintiff was terminated at a valid meeting at which a proper quorum was present. However, CSA at the same time recommended to UCCAC that it allow plaintiff an opportunity to rebut the charges against him. The UCCAC Board then offered plaintiff another chance for a hearing on his dismissal on January 28, 1976, but plaintiff again declined to participate.

 At the request of CSA, the UCCAC Board of Directors was totally reconstituted during February and March, 1976. On April 20, the new Board appointed a personnel committee consisting of three persons, none of whom had been involved in the original decision to dismiss plaintiff, in order to consider plaintiff's status. The Personnel Committee refused plaintiff's request for an opportunity to present oral testimony but instead requested a written submission from plaintiff. After considering ...

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