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May 4, 1984

ELSIE M. PARADISE, Plaintiff, MICHAEL C. O'LAUGHLIN, Individually and as Mayor of the City of Niagara Falls, New York, and also as a voting member of the City Council of Niagara Falls, New York; LEO MARTEL, Individually and as a Councilman of the City Council of Niagara Falls, New York; and MICHAEL V. REDDING, Individually and as a Councilman-Elect of the City Council of Niagara Falls, New York, Defendants.

The opinion of the court was delivered by: CURTIN

In this action brought pursuant to 42 U.S.C. § 1983 and 21 U.S.C. § 1343(a)(3), plaintiff Elsie Paradise seeks to permanently enjoin and restrain defendants O'Laughlin, Martel, and Redding, individually and as voting members of the City Council of the City of Niagara Falls, from taking any action to terminate or replace her as City Clerk of Niagara Falls, New York. A hearing was held, and summations have been concluded. The following constitutes the court's findings of fact and conclusions of law.

Plaintiff, a Republican, was chosen as City Clerk in February of 1982 by the City Council of Niagara Falls, which at that time was composed of a Republican majority (three Republicans and two Democrats). The vote which placed her in her present position was 4 - 1: three Republican Councilmen and one Democrat voting in favor of her selection, and one Democratic Councilman voting against her. She has served as City Clerk since that time.

Mayor Michael C. O'Laughlin, who is also a member of the Council, Leo Martel, and Michael V. Redding now comprise the Democratic majority of the Council. Mayor O'Laughlin and Mr. Martel had been reelected, and Mr. Redding was elected in the fall of 1983, with his term to commence on January 1, 1984. At present, the remaining members of the Council, Mervin J. Cook and Joseph J. Smith, are Republicans.

 During November and December of 1983, newspaper articles and rumors circulated in the Niagara Falls community that Mrs. Paradise was to be replaced as City Clerk. Because of that, she commenced this action on December 27, 1983, contending that the Democratic majority on the Council was trying to replace her solely for political reasons in violation of her first amendment rights. She contends that:

 [t]he position of Clerk of the City Council is a non-policy making, non-confidential governmental position for which political party affiliation is not required for the effective performance of the duties of the said office.

 Amended Complaint, [P]11.

 The court met with the parties in early January, 1984, and issued a temporary order restraining the City Council from removing Mrs. Paradise as City Clerk. Evidence was heard on January 30, 1984, and February 17, 1984, and after several adjournments, summations were heard on April 3, 1984. I delayed hearing summations until after March 24, 1984, when the Council formally voted to terminate the plaintiff and appoint Rita Buchalski as City Clerk in her place. The action against Councilmen Cook and Smith was dismissed by order of January 26, 1984. The action against Francis A. Soda, Chairman of the Niagara Falls Democratic City Committee, was also dismissed.

 The duties of City Clerk are set forth in section 45 of the Charter of the City. A review of that section reveals that the City Clerk's duties are ministerial, with discretion given in only minor matters. The City Clerk cannot hire or fire employees, upgrade or downgrade them in salary, or change their classification. The City Clerk issues various licenses but must grant the applications if the papers are in proper order. Budget requests go from the Clerk to the Budget Department and, finally, to the Manager and Council for approval. The Charter does not provide a term for the Clerk's position but states that the Clerk serves "during the pleasure of the Council . . ." (Def. Ex. A, City Carter § 7(3)) and "may at any time be arbitrarily removed or discharged by the Council . . .." (Id. at § 20).

 A few days after the November 1983 election, in which the Democrats gained control of the Council, articles appeared in the press indicating that a change in the City Clerk's position was contemplated by the Democratic majority. On November 10, 1983, the Niagara Gazette quoted Mayor O'Laughlin. When asked if Elsie Paradise might be replaced, the Mayor said:

 That is a position we will certainly look at closely. I have nothing against Elsie Paradise, but will we replace her as city clerk? I'd have to say realistically, we will think about that, yes.

 (Plaintiff's Ex. 12B.)

 On December 1, 1983, Mayor O'Laughlin and incumbent Democratic Councilmen Martel and Redding received a letter from Chairman Soda of the Democratic City Committee which recommended that "qualified Democrats be considered for the positions of City Clerk, etc." (Plaintiff's Exhibit 9.) Mayor O'Laughlin informed Mr. Soda that he would not be bound by party dictates (Defendants' Ex. C--letter to Soda, 12-16-83). He and other Councilmen insisted that Soda's directions did not control their decision with respect to filling the City Clerk slot.

 A radio station WEBR broadcast of December 29, 1983, represented Councilman Martel as stating that: "Whether Elsie did a good job or not isn't the point. He [Martel] says party politics brought her in two years ago, and now the ...

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