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ECKER v. COHALAN

July 8, 1982

Edward ECKER, Plaintiff,
v.
Peter COHALAN, County Executive of the County of Suffolk, John Chester, Commissioner of Parks, Recreation and Conservation for the County of Suffolk, and the County of Suffolk, Defendants



The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

Plaintiff, formerly Chief Deputy Commissioner of Parks, Conservation and Recreation for Suffolk County, claims that he was dismissed for political reasons in violation of the First and Fourteenth Amendments. 42 U.S.C. § 1983. He seeks reinstatement, back pay and benefits, and other compensatory damages from the County, the County Executive, and the County Commissioner of Parks. For the reasons indicated below, the suit must be dismissed as frivolous.

 FACTS

 I. The Nature of the Position

 Under the Suffolk County Charter, the Commissioner of Parks is empowered to appoint and to dismiss the Deputy Commissioner of Parks. Suffolk County Charter, Art. 28, § 2801(b). The Commissioner of Parks serves under the direction of the County Executive. Suffolk County Local Law No. 7, 1981.

 The Deputy Commissioner possesses "the powers" and may "perform the duties and act generally for and in place of the Commissioner." Suffolk County Charter Art. 28, § 2804. At the time of his dismissal, plaintiff's salary was over $ 36,000.00 a year, one of the highest paid by the County.

 As Deputy Commissioner, plaintiff was delegated primary responsibility for personnel, vehicles, insurance and the park rangers service. He represented the Parks Department at meetings of the Public Safety Committee of the County Legislature, at employee grievance and disciplinary hearings, and at any other hearings that the Commissioner was unable to attend. In addition, he regularly was present at meetings of the Board of Trustees of Parks, Recreation and Conservation, and monthly conferences with the Commissioner and Superintendent at which department policy was often set.

 Though head of personnel for the Parks Department, plaintiff had limited discretion over hiring and promotion of permanent employees, since these were largely civil service positions. He did, however, have primary responsibility for the selection of summer employees, numbering approximately 400, subject to recommendations of the Republican Party town leaders of the County. The party leadership to which plaintiff answered for his performance of this function was one in which he held a prominent place. Plaintiff was himself a Town Committeeman and from 1977 to 1979 was East Hampton Town Leader. In addition, he was a long time protege of former State Assembly Speaker Perry Duryea, then a powerful figure in Suffolk County Republican politics.

 Subsequent to plaintiff's discharge, he sought unemployment benefits. These were denied on the basis of an administrative finding by an insurance referee for the New York State Department of Labor that plaintiff was ineligible because he had occupied a "major non-tenured policymaking position." N.Y. Unemployment Insurance Law § 565.2.

 II. Plaintiff's Discharge

 Plaintiff was appointed Deputy Commissioner of Parks in 1967. From 1969 to 1974, he simultaneously was a legislative assistant to the State Assembly Speaker. When, in 1974, defendant John Chester became Commissioner of Parks, he directed plaintiff to give up the legislative position and plaintiff did so. In 1975 Chester named plaintiff Chief Deputy Commissioner of Parks. In 1977 plaintiff became the sole Deputy Commissioner, retaining his title of Chief Deputy.

 During the 1979 campaign for County Executive, defendant Peter Cohalan challenged incumbent John Klein for the Republican Party nomination. Plaintiff actively supported Klein against Cohalan. At the June nominating convention, heated words were exchanged between plaintiff and Cohalan. After his election as County Executive, Cohalan directed John Chester to replace plaintiff with Henry Berger and this order was carried out. Moreover, Cohalan blocked attempts to place plaintiff on the County payroll in a lesser capacity so that his pension could vest.

 III. Relative Qualifications of Plaintiff and of His Replacement

 Prior to his appointment as Deputy Commissioner of Parks in 1967, plaintiff had served as a probation officer (1954-1959), Deputy County Coordinator (1959), Deputy Commissioner of Jurors (1960-1961), Commissioner of Jurors (1961-1963), Town Supervisor of East Hampton (1964-1967), and Research Assistant to the New York State Constitutional Convention (1967). From 1969 to 1974, as already noted, he was a state compensated Consultant to State Assembly Speaker, Perry Duryea. Each of these positions was obtained through the Suffolk County Republican Leadership, largely on the recommendation of Perry Duryea.

 Plaintiff has no college degree and no formal training in any area of parks management. His political experience, by contrast, is extensive. He was a Republican County Committeeman throughout much of his employment history. From 1977 to 1979 he was East Hampton Town Leader and served on the Executive Committee of the Suffolk County Republican Committee. During his tenure as Deputy Commissioner of Parks, plaintiff devoted extensive time to political commitments outside the county as well. From 1969 to 1974 he assisted Perry Duryea in Albany, often several days a week. In 1978 he took a six month leave of absence to assist Duryea in his unsuccessful gubernatorial campaign and its aftermath.

 As Deputy Commissioner of Parks plaintiff's performance was unspectacular. Defendant John Chester, plaintiff's immediate superior in the Parks Department from 1974 to 1980, testified that plaintiff continued to devote much of his time to his political responsibilities even after giving up his position in Albany; that he was incapable of providing the Commissioner with needed assistance in preparing the department's budget; that he frequently exceeded budget allocations for personnel; that he failed to perform tasks assigned to him; that he could not perform day-to-day administrative tasks; and that he did not follow directions. Transcript pp. 315-317, 324, 337. Chester, nevertheless, had retained Ecker as Deputy Commissioner during the Klein regime because he feared the political consequences of firing him; Ecker was his "political superior." Transcript p. 317.

 Henry Berger, the replacement, has a Masters Degree in recreation and parks administration and he is currently pursuing doctoral studies in the same field. In his capacity as Vice President of a management consulting firm, he had advised the Town of Islip (of which Cohalan was then Town Supervisor) on recreation services. On the basis of Berger's performance, Cohalan appointed him Commissioner of Parks for Islip. Berger had had no affiliation with the Republican Party. As Deputy Commissioner of Parks for the County, Berger has performed far better than did plaintiff. Transcript p. 280. For example, unlike plaintiff, he has been able to assist the Commissioner in preparing budgets. Transcript pp. 337-338.

 IV. Political Context of the Discharge

 Cohalan's campaign for County Executive was based on an attack on the then reigning Republican leadership of Suffolk County. He accused this leadership of corruption, and unresponsiveness to popular needs. He pledged to make "a clean sweep," ridding County government of political "hacks" (Defense Exhibit Q), and replacing them with creative policymakers and competent administrators. At trial, Cohalan testified:

 
When I ran for County Executive, I ran on a platform that I would bring in a new team, a clean sweep, get rid of the Old Guard Republicans who I feel brought the county to its knees, and I wanted to get rid of the whole Schwenk apparatus and in order to do that I had to replace people who represented the old wing of the party and who were actively involved in top policy-making positions in the county where they could do me harm if they wish with my own people, especially where my own people were professionally qualified.

 Transcript pp. 264-265.

 To fulfill these campaign pledges, he identified approximately 150 positions involving the making, implementing or explaining of policy. Transcript pp. 260-261. These positions are now in part filled by Democrats or Republican opponents, who Cohalan believed "were experts in their positions and ... better than anybody (he) interviewed who might want their jobs." Transcript pp. 279-280. Cohalan identified the Deputy Commissioner of Parks as one of these key jobs. He characterized plaintiff as a member of the Republican Party "Old Guard" that he had pledged during his campaign he would sweep from power in the County. "I felt very strongly," he testified, that "Ecker ... was not on my team. He was one ...


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