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VISSER v. MAGNARELLI

January 19, 1982

Robert J. VISSER, Plaintiff,
v.
Armand MAGNARELLI, James C. Tormey, Jr., Joseph A. Nicoletti, Bernard J. Mahoney, John A. DeFrancisco, Walter J. Ludovico, Edward S. Nowakowski, James T. Walsh, James P. McCarthy, Nancy Larraine Hoffmann, individually and collectively as constituting the Common Council of the City of Syracuse, New York, and Joseph Falge, Defendants *



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

Plaintiff commenced this action for injunctive and monetary relief to protect his position as City Clerk of the City of Syracuse, New York. Visser, a Democrat, claims that the Republican majority on the Syracuse Common Council is trying to replace him solely for political reasons, in violation of his First Amendment rights of freedom of belief and association. From the evidence presented and the principles of Elrod v. Burns *fn1" and Branti v. Finkel, *fn2" the Court reluctantly concludes that defendants-councilors must be enjoined from dismissing or failing to reelect plaintiff solely on the grounds of his political affiliations.

I.

 Plaintiff Robert Visser was chosen as deputy City Clerk in January, 1974, by the then-City Clerk, Mortimer Gallivan. *fn3" In September, 1980, the Common Council elected Visser to replace Gallivan as City Clerk upon the latter's resignation. In the November, 1980 elections, the Republican Party regained control of the Common Council by one vote. Republican legislators considered firing Visser at that time, but held off on advice of counsel. Their renewed attempts to replace plaintiff with a Republican City Clerk in late December, 1981, precipitated this action.

 Plaintiff filed his complaint on December 31, 1981. *fn4" By order to show cause, he sought a temporary restraining order and a preliminary injunction enjoining defendants from taking any action to terminate or replace him as City Clerk and from attempting to alter his employment status. Plaintiff specifically sought to enjoin the Common Council from voting for a new City Clerk at its January 2, 1982 organizational meeting. This Court signed a modified temporary restraining order, allowing the Common Council to hold an election for City Clerk, but enjoining defendants from declaring the position vacant and from installing any person other than plaintiff as City Clerk, and ordering Visser to be retained in his job pending this opinion. *fn5"

 At its January 2 meeting, defendant Joseph Falge, a Republican, was nominated and elected as City Clerk. The vote split down party lines, with the five Republicans supporting Falge and the four Democrats opposing him. Pursuant to the temporary restraining order, however, Falge has not been sworn into office.

 On January 8, 1982, the Court held an evidentiary hearing. Pursuant to Fed.R.Civ.P. 65(a)(2), and upon the consent of the parties, the plenary trial was advanced and consolidated with the preliminary injunction hearing as to the issue of liability. The issues of immunity and damages are to be determined later. *fn6" On January 11, this Court issued a Judgment-Order in favor of plaintiff. This Memorandum-Decision and Order explains the Judgment-Order and constitutes the Court's findings of fact and conclusions of law under Fed.R.Civ.P. 52(a).

 II.

 Section 3-113 of the Syracuse City Charter describes the City Clerk's general duties:

 
(1) The Council shall choose a clerk. He shall be the City Clerk and shall attend the meetings of the Council, keep a journal of its proceedings and discharge such other duties as may be prescribed by ordinance. The City Clerk shall transmit to the head of each office, department or board, copies of all ordinances in any matter affecting any of the matters of which any such office, department or board shall have jurisdiction. He shall have custody of the City seal.

 (2) The clerk shall keep each ordinance passed in a book provided for that purpose. He shall give notice in writing to each officer of his election or appointment and of the amount of his official bond or undertaking, if any. He shall cause to be published all notices, advertising matters or proceedings as required by the provisions of this Charter or by law or ordinance. *fn7"

 In addition, plaintiff testified that he prepares the agenda for Common Council meetings, based on requests for legislation submitted to him by councilors. He automatically includes proposed resolutions on the agenda unless another councilor objects. He also prepares the agenda for Board of Estimate meetings, and keeps a journal of its proceedings. *fn8" As with Common Council agenda preparation, the City Clerk lacks any discretion to decide the agenda's contents; department head requests are automatically included as topics for discussion. The City Clerk also administers the issuance of hunting, fishing, marriage and dog licenses. Finally, the City Clerk has the authority to hire and fire the deputy clerk.

 III.

 The Court identified five issues to be resolved in this case: 1) whether plaintiff's term as City Clerk is indefinite or for a fixed two year period; 2) whether Elrod and Branti apply to a "refusal to rehire" case; 3) whether plaintiff has met his threshold burden to prove that his political affiliation was a substantial or motivating factor in defendants-councilors' decision not to rehire him; 4) whether Branti's "policymaking" exception applies here; and 5) whether defendants' "lack of intent" defense precludes this action.

 The first issue involves the City Clerk's length of term. Resolution of that question in turn determines the characterization of this case. Plaintiff argues from the city charter's silence on the subject *fn9" that his term is indefinite. If so, defendants-councilors are attempting to dismiss plaintiff, and their activities clearly fall within the Elrod and Branti fact patterns. *fn10" Conversely, the Republican defendants-councilors urge that a long standing custom of electing or reelecting a city clerk at the Council's organizational meeting, held every two years, effectively creates a two year term. Under this interpretation, plaintiff's position expired midnight, December 31, 1981. The Council's election of defendant Falge on January 2 as the new City Clerk would then place plaintiff's complaint in the category of "failure to reelect" cases, which the Supreme Court has not directly addressed. For the reasons below, the Court agrees with defendants on this issue.

 The tradition of electing a City Clerk every two years at the Common Council's first meeting of its term is long and unwavering. The minutes of every organizational meeting held under the old city charter specifically delimited the City Clerk's term as being two years. *fn11" Despite the current city charter's silence on the topic, the Common Council has consistently continued to elect or reelect a City Clerk every two years. *fn12"

 Moreover, the minutes of the September 29, 1980 Common Council meeting, at which plaintiff was elected City Clerk, state that he was elected to serve out the previous clerk's unexpired term. The oath of office signed by Visser states that his term expires December 31, 1981. *fn13" Visser's acquiescence in this longstanding custom may preclude his attack on its validity. *fn14" Courts generally follow the interpretation placed on local laws by municipal ...


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