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November 21, 1980

William D. BAVOSO, Plaintiff,
Fred R. HARDING, Jr., Patricia K. Weed, Walter B. Markovits, Pauline Schultzand William J. Hockenberry, Defendants

The opinion of the court was delivered by: SWEET

By this motion, William Bavoso seeks a preliminary injunction against the defendants, five Republican members of the Common Council of the City of Port Jervis, New York, restraining them from "terminating or attempting to terminate, alter, change, usurp or in any way affect Plaintiff's current employment status as Corporation Counsel of the City of Port Jervis." Because Bavoso has failed to meet the standard of this Circuit for preliminary injunctive relief, the motion is denied. The facts are as follows.

The City Charter of the City of Port Jervis establishes the procedure whereby the Corporation Counsel is appointed, his term of office, and his powers and duties. It provides, in Section C2-4(A), that the Corporation Counsel "shall be nominated by the Mayor and appointed by the Common Council, five (5) votes being necessary for an appointment ...." In Section C2-4(B), it sets a term of one year, "subject to removal for cause by the Common Council," for the Corporation Counsel. Finally, in Section C3-8, it sets forth the Counsel's powers and duties, as follows:

The Corporation Counsel shall be the legal advisor of the Mayor, Common Council and all other city officers, boards and agencies. It shall be the duty of the Corporation Counsel to prosecute all civil actions and proceedings by, and to defend all civil actions and proceedings against said city and every board, agency or officer thereof and to discharge all other legal services as the Mayor or Common Council may direct. It shall also be the duty of the Corporation Counsel to prosecute all cases of violations of local laws and ordinances before the City Court or other appropriate court. The Corporation Counsel shall prosecute or defend all matters as directed by state law. No action or proceeding shall be commenced by the Corporation Counsel unless directed by the Common Council.

 Bavoso was first appointed as Corporation Counsel of Port Jervis on January 23, 1978, after nomination by Port Jervis Mayor E. Arthur Gray. He was reappointed on January 22, 1979. On both occasions, his appointment was unanimously approved by the members of the Common Council then serving, among whom were, on the first occasion, defendants Fred R. Harding, Jr. and Walter B. Markovits, and, on the second occasion, those two defendants and a third, Patricia K. Weed. At the time of these appointments, there was a Democratic majority on the Common Council. The plaintiff is a Democrat.

 In the November, 1979 election, Republicans gained control of the Council; with the coming of the new year in 1980, the five defendants, who make up the new Republican majority, assumed office.

 On January 28, 1980, Mayor Gray once again nominated Bavoso for the position of Corporation Counsel. This time, his appointment was defeated, with all five defendants voting against him. Since then, Mayor Gray has nominated Bavoso every thirty days. Each time, Bavoso's appointment has been defeated by the same five Council members, the defendants herein. After those defeats, Mayor Gray has himself appointed Bavoso to act as Corporation Counsel, claiming executive authority to do so. However, the Common Council has not recognized Bavoso's appointment, and has withheld payment on vouchers submitted by him. Nonetheless, the Council did adopt a resolution on the 14th of July, 1980, allocating a flat fee of $ 5,000 for Bavoso "for services rendered during the period February 1, 1980 to June 30, 1980 plus an additional sum of $ 1250 for expenses incurred during said period." Bavoso declined to accept that fee because of the Council's failure to recognize him as Corporation Counsel. There is no dispute that Bavoso has continued to perform legal work for the City; the dispute revolves around his authority for doing so, and, most importantly, his alleged entitlement to reappointment to the position of Corporation Counsel.

 Bavoso contends that the Council's failure to reappoint him resulted from partisan political considerations only, that his membership in the Democratic Party was the sole reason for his rejection by the Republican majority. He argues that the Council's action, because based on partisan politics, violated his rights under the First Amendment.

 The defendants assert that Bavoso was incompetent, and that that incompetence caused them to reject his nomination. They point to a number of instances that, they say, illustrate Bavoso's poor performance in office and justify their refusal to confirm him for a third term.

 The standard for the granting of a preliminary injunction in the Second Circuit was articulated in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) as follows:

The standard in the Second Circuit for injunctive relief clearly calls for a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. (Footnote omitted.)

 Bavoso has shown neither possible component of the second element on this equation.

 To begin with, Bavoso has failed to establish that he is likely to succeed on the merits. For his legal argument, Bavoso stands on Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). But Branti does not provide the support he seeks.

 In Branti, the Supreme Court found unconstitutional the action of a newly elected Public Defender in firing assistants who were members of the opposition political party because of their party affiliation. The Court re-examined and seemingly abandoned the test set forth in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), for determining the permissibility of consideration of party affiliation in dismissals from positions of public employment. That test allowed such consideration for policy-making and confidential positions, and disallowed it for non-policy-making, non-confidential employees. In Branti, the Supreme Court recognized that certain policy-making positions require no partisan political allegiance, whereas certain non-policy jobs may legitimately be tied to party affiliation. The Branti Court set forth a new test:

In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate ...

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