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April 5, 1983


The opinion of the court was delivered by: BRIEANT


 Brieant, J.

 The scenario for this § 1983 civil rights action begins with the 1981 elections in the Town of Clarkstown, Rockland County, New York. The primary players are plaintiff Theodore Dusanenko, a Republican, Town Supervisor since 1980, plaintiff Nicholas Longo, the Conservative-Republican candidate for Town Councilman and defendant William Carey, the Republican candidate for the same position. Although Dusanenko, Carey and Longo were all, nominally at least, of the same political persuasion, they did not campaign together, evidently because of philosophic differences and because Dusanenko had not supported Carey in his bid for the Republican nomination. Dusanenko and Longo presented themselves to the voters as a team, while Carey campaigned alone.

 In the general election held on November 3, 1981, Dusanenko was re-elected Town Supervisor for a two-year term. Defendant Carey was elected a Town Councilman for a four-year term, as was defendant John R. Maloney, one of the Democratic candidates. Longo was defeated in his bid for re-election.

 The terms of office of Dusanenko, Carey and Maloney commenced on January 1, 1982. The Town Board of a town of the first class, such as Clarkstown, consists of one supervisor, who presides, having a two-year term, four councilmen, having four-year terms, two of whom are elected at each biennial town election in November of the odd numbered years (except in Broome County) and a Town Clerk, who has no vote, elected for a two-year term. Accordingly, after January 1, 1982, the voting power of the Town Board of Clarkstown was vested in Dusanenko, Carey and Maloney, together with Edward Lettre, a Republican, and defendant Charles F. Holbrook, a Democrat, incumbent councilmen whose four-year terms will expire in December 1983.

 In early January 1983 the Town Board held a reorganizational meeting, as it does following any election. By a majority vote of defendants Maloney, Holbrook and Carey, the new Board set the salaries of Supervisor Dusanenko and his newly appointed Confidential Secretary, defeated former councilman Nicholas Longo.

 Authority for the appointment of a "Confidential Secretary" is found in New York Town Law, (hereinafter "Town Law") § 29(15). The appointment is made solely by the Supervisor, to serve at his pleasure, although the salary is fixed by Town Board resolution. The position is in the "Exempt" class under the New York Civil Service Law, § 41. All other appointed officials in town government are hired by vote of the entire Board, and are generally classified as in the "competitive class," in that appointment must be made from a current certified list of the civil service commission of those who passed a competitive examination, or in the "non-competitive class" in that the appointee must satisfy certain objective criteria as to education and experience but need not pass a civil service examination. All elected officials are in the "exempt" class. See generally, New York Civil Service Law, § 41.

 The salaries approved by the Town Board for 1983 were considerably lower than those paid in 1981; the Supervisor's annual salary was reduced from $39,000 to $20,000 and the salary for the new Confidential Secretary was lowered from $15,730 paid to the predecessor, to $7,500.

 The same Town Board majority also declined to reappoint plaintiff Robert Maidman, Esq., as deputy town attorney, and instead appointed Paul Nowicki, Esq. Nowicki, who is conceded to be eligible and qualified for the appointment, turns out to be the son of Catherine Nowicki, defendant Carey's campaign chairman in the 1981 election.

 Plaintiffs characterize the majority votes as "politically vindictive" with regard to plaintiffs Dusanenko and Longo, and as evidencing a "callous disregard for the rights" of plaintiff Maidman. Moreover, plaintiffs claim that the actions taken by the defendants, acting both individually and in their official capacity as the Town Board, violate plaintiffs' rights pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendment to the Constitution of the United States. Plaintiffs seek a judgment in the nature of a mandatory injunction, requiring restoration of the salary of Dusanenko to the level at which he was paid in 1981 and commanding that Longo be paid at the 1981 level of pay of his predecessor as Confidential Secretary, Mrs. Doris Fogel; *fn1" as well as the reappointment of Maidman as Deputy Town Attorney. Plaintiffs also seek punitive damages and attorneys fees. To attain this relief, they seek to bring their grievances within the rubric of 42 U.S.C. § 1983, and would have this federal court, by injunctive relief and the award of compensatory and exemplary damages, undertake to restructure the affairs of town government in Clarkstown to their greater advantage. We consider below whether the relief sought may be obtained based on this complaint and relying on the Civil Rights Law of 1871.

 Defendants seek summary judgment in their favor pursuant to Rule 56, F.R.Civ.P. Principally they contend that their actions were lawful, and were undertaken by them in a "legislative" capacity. They argue that they are absolutely immune from suit under 42 U.S.C. § 1983 upon the undisputed facts pleaded or admitted here.

 We set the stage for our discussion by describing local town government in New York State. In doing so, we call upon the common knowledge of a resident of Upstate New York, where a principal industry and substantial payroll is Government. We rely also on the interesting brief account of the late Hon. Frank C. Moore of Kenmore, New York, entitled "Early History of Town Government in New York State," authored in 1933 upon recodification of the Town Law, now found in the preface to Volume 61 of McKinney's New York Statutes Annotated. Later Lieutenant Governor of New York, Moore also served as head of the Office of Local Government of the State of New York. A skilled municipal lawyer, Governor Moore was generally regarded as the guardian and protector of the small units of local government in New York. He is also author of the aphorism that "Home Rule is the right to be misgoverned by our friends and neighbors."

 The "Dukes Laws" imposed in 1665 by Governor Nichols in the name of the Duke of York to govern the vast area ceded to the Duke by his brother Carolus Rex, provided for a restructuring and confirmation of local town government as it had theretofore existed, including police, defense and tax powers, local courts and the right of freeholders to vote in town meetings and to legislate. Property taxes, for the relief of the poor, were first assessed in New York by the colonial legislature in 1683. These taxes were administered on a town wide basis. An act of that year provided for election in each town of a "Town Treasurer." That official was the predecessor of the Town Supervisor, the position now occupied by plaintiff Dusanenko in this case with respect to the Town of Clarkstown.

 The independent State of New York adopted its first Constitution at Kingston, in Ulster County in 1777. That document recognized the existing chartered cities of Albany and New-York, and fourteen pre-existing counties. It made no mention of the existing towns, which continued to function, but authorized future state legislatures to divide the state "into such other and further counties and districts as may then appear necessary" for the "advantage and conveniences of the good people." (Const. of 1777, Art. XII).

 The state legislature interpreted this provision as authority for the creation of additional towns by specific statutory enactment. *fn2"

 Towns in New York have no inherent powers and possess no sovereignty. As was held in Holroyd v. Town of Indian Lake, 180 N.Y. 318, 322, 73 N.E. 36 (1905) "the existence and power of a town depend to no extent upon the common law, but wholly upon the will of the legislature."

 Because in each biennial town election two councilmen and the supervisor are elected, it can be seen that at any town election, by choosing a new supervisor and two new councilmen, it is possible for the voters to impose political accountability and, in effect, throw the rascals out, altering the political complexion of the town government. And they do so regularly. It is also readily apparent that a supervisor has a natural adverse position with respect to those two councilmen who will not have to face the electorate as soon as the supervisor will.

 The supervisor's duties and powers are found in the Town Law, §§ 29(1) -- 29(16). Generally, in addition to presiding at meetings of the town board, of which he is a voting member, the supervisor also serves as chief fiscal officer of the town. In former years, he was ex officio a member of the County Board of Supervisors, the governing body in county government, New York's next highest level. Because all towns are not of the same size or population, the advent of the "one man-one vote" concept ended this aspect of the supervisor's work.

 The town board as a body has budgetary authority. The supervisor prepares a tentative budget for each calendar year, which is adopted, as changed or modified, after a public hearing, by a majority vote of the town board. By board resolution the salaries and job titles (subject to the Civil Service Law where applicable) are designated.

 While the public responsibilities of a Town Supervisor are substantial, his position is not necessarily a full-time occupation in most places. Clarkstown, according to the 1980 federal census, had a town-wide population of 77,091. Of these residents, approximately 4,572 resided in incorporated villages located wholly or in part within the town. These include the Village of Upper Nyack, located entirely within Clarkstown (Pop. 1,906), and a part of the Village of Spring Valley, located principally in the adjoining Town of Ramapo, and a part of the Village of Nyack, located principally in the adjoining Town of ...

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