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June 10, 1984

MARION SCIORTINO GOODWIN, THOMAS F. ARTESSA, SR., NICHOLAS A. JAMSIUK, FRANCIS H. LAZAUSKY, FRANK R. LaBELLA, JOHN J. PULEO, and JAMES J. SCHIAVETTA, all individually and in behalf of themselves and all other employees of the City of Utica similarly situated, Plaintiffs,
LOUIS LaPOLLA individually, and as Mayor of the City of Utica, FRANK DULAN individually, and as special assistant to the Mayor of the City of Utica, ALFRED BARBATO individually, and as assistant to the Mayor of the City of Utica, THE CITY OF UTICA, THOMAS NELSON as Comptroller of said City, and JOHN DOE and RICHARD ROE, the names JOHN DOE and RICHARD ROE being fictitious, the true name of each said Defendant being unknown to the Plaintiffs, the Defendants intended as being advisors, consultants and/or members of committees advising and consulting the Mayor of the City of Utica concerning the discharge of employees of the City of Utica, Defendants.

The opinion of the court was delivered by: MUNSON




 On November 8, 1983 former Democratic City Councilor Louis LaPolla was elected Mayor of the City of Utica. Mr. LaPolla ran on the Republican ticket and defeated three-term incumbent Mayor Stephen Pawlinga. In the relatively short amount of time between the November general election and Mr. LaPolla's assumption of office on January 3, 1984, Mr. LaPolla and his top aides attempted to formulate a smooth transition period. This attempt was not altogether successful due to the bitter feelings between the City's political parties. During the month of December Mayor-elect LaPolla determined that a certain number of City employees would be laid off. Approximately 68-86 employees were then laid off on or about January 3, 1984.

 Seven of the laid-off employees have brought this action seeking declaratory, injunctive and monetary relief pursuant to 42 U.S.C. § 1983 (1982). Specifically, plaintiffs allege that they were discharged solely because of their political beliefs in violation of the first amendment and the rules announced in Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980) and Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Although the Supreme Court's decision in Branti and Elrod have been the law in this country for a number of years, the Northern District of New York has been the setting for numerous lawsuits alleging a violation of these well-established principles. See, e.g., Visser v. Magnarelli, 530 F. Supp. 1165 (N.D.N.Y. 1982); Brady v. Paterson, 515 F. Supp. 695 (N.D.N.Y. 1981); Layden v. Costello, 517 F. Supp. 860 (N.D.N.Y. 1981).

 In the context of this particular action, the court believes that the bitter election campaign and loss by former Mayor Pawlinga may be one of the key factors giving rise to this lawsuit. This is so notwithstanding the discharge of the seven named plaintiffs. In any event plaintiffs have alleged violations of their constitutional rights, and this court will not hesitate to address those issues.

 While plaintiffs claim that they were aware of their impending discharges soon after the November general election, no action with respect to seeking an injunction was forthcoming until late in February of 1984. Thus, unlike the situations presented in Visser, Brady and Layden, this court was not able to enjoin defendants from discharging plaintiffs prior to their actual terminations. Be that as it may, this court has the power to order, by injunction, the reinstatement of plaintiffs even though such an order will not be entered until long after the discharges. See generally Holt v. The Continental Group, Inc., 708 F.2d 87, 90 (2d Cir. 1983), cert. denied, 465 U.S. 1038, 104 S. Ct. 1316, 79 L. Ed. 2d 712 (1984) (citing National Ass'n of Letter Carriers v. Sombrotto, 449 F.2d 915, 921 (2d Cir. 1971); Westchester Lodge 2186 v. Railway Express Agency, 329 F.2d 748, 752 (2d Cir. 1964)).

 This court entered an order to show cause on February 27, 1984 directing defendants to show cause why plaintiffs should not be reinstated and why this action should not be certified as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. A hearing on plaintiff's motion for a preliminary injunction washeld on March 1st and 2nd and was concluded on March 15th and 16th of 1984. Pursuant to Rule 65(a)(2) of the Fed. R. Civ. P., and with the consent of the parties, the court has consolidated the hearing on the motion for a preliminary injunction with the trial on the merits. The court has received post-trial memoranda from the parties and this Memorandum -- Decision and Order shall be considered the court's findings of fact and conclusions of law. See Fed. R. Civ. P. 52.


 Louis LaPolla served as a Utica City Councilman for approximately ten years. During this time Mr. LaPolla was an enrolled and active member of the Democratic Party. Following several attempts to receive the Democratic nomination, Mr. LaPolla sought and received the Republican endorsement for Mayor in the spring of 1983. Mr. LaPolla, as noted above, defeated three-term incumbent Mayor Stephen Pawlinga in the general election held on November 8, 1983.

 In order to effect a smooth transition into his new job, Mr. LaPolla formed a transition team consisting of, among others, the present Corporation Counsel Armond J. Festine and defendants Frank Dulan and Alfred Barbato. As is customary in any change of administration, the matter of terminating City employees and replacing them with new employees was a prime topic of discussion. While defendant Dulan suggested that a "clean sweep" of all present City employees would be the apropriate course of action, it is beyond dispute that Mr. LaPolla and the rest of his transition team rejected such a suggestion. Moreover, the record in the present case indicates that no "clean sweep" was made. Rather, only a small percentage of City employees were discharged by the incoming administration.

 During the period between the general election and the first day of the new administration on January 3, 1984, several significant events occurred. While the timing of these events is much in dispute and may well be at the core of the instant lawsuit, the court believes that they should be described in the following order.

 Mayor-elect LaPolla and City Comptroller Thomas Nelson, also a defendant herein, met during the month of December to discuss the City's budget. The budget for the City of Utica runs from April 1 through March 31. Mr. Nelson informed Mr. LaPolla that notwithstanding the fact that the current budget had some months to run, the City was heading for a possible $750,000.00 deficit if the rate of spending was not reduced. In addition, Mayor-elect LaPolla met with Michael Houseknecht, the Commissioner of Urban and Economic Development. Mr. Houseknecht informed Mayor-elect LaPolla that the City was under an order from the United States Department of Housing and Urban Development [HUD] to reimburse HUD approximately $176,000.00 for improper spending and/or accounting procedures by the City's Urban and Economic Development Administration.

 The next occurrence during this time period was the review by Mr. LaPolla and his transition team of the City's payroll. Mayor-elect LaPolla and his aides examined the Utica City payroll and also requested all City employees interested in remaining on the payroll to submit their resumes to Mr. LaPolla for his review. Mayor LaPolla testified that his efforts were hampered by the failure of the outgoing administration to cooperate in any way with the transition team and Mr. LaPolla himself. Plaintiffs produced former Deputy Mayor Joseph LaBella to rebut Mayor LaPolla's assertion that there was a lack of cooperation. Mr. LaBella's demeanor in testifying, including his off-the-record comments after leaving the witness stand, buttress the court's conclusion that there was indeed bitterness between the City's political parties following Mr. LaPolla's victory in the general election. While this lack of cooperation may not have been as great as that testified to by Mr. LaPolla, the court finds that Mayor-elect LaPolla and his transition team were hampered in their efforts by the outgoing administration.

 As a result of Mayor-elect LaPolla's conversations with Comptroller Nelson, Commissioner Houseknecht, and his review of the City's payroll, it was determined that a certain number of City employees would be terminated. The court is reluctant to place an exact figure on the number of employees proposed to be terminated, or actually terminated, because neither plaintiffs nor defendants established this fact with any degree of certainty at trial. Plaintiffs have been urging this court to accept their figure of 86 employees but failed to produce any evidence in support thereof, and this court declines plaintiffs' suggestion to make a line-by-line comparison of the two City payrolls admitted into evidence. See Plaintiffs' Exhibits 1 and 2. On the opposite side defendants have urged the court to accept their figure of 68 employees. As noted previously, defendants also failed to establish the precise number of employees actually terminated. Thus, the court will assume that the figure is somewhere between 68 and 86 and will simply refer to such persons as the "terminated City employees."

 Mayor-elect LaPolla sent notices to many, if not all, of the City employees to be terminated.Such notices were dated on or about December 23, 1983 and advised the employees that their services would not longer be required after January 3, 1984. On January 3, 1984, the first day of the new administration, the terminated City employees were personally handed notices stating that their services were being terminated immediately.Needless to say, this first day of business was a hectic time at Utica City Hall.The court further notes that plaintiffs dispute the timing of Mayor-elect LaPolla's sending of the notices vis-a-vis his discovery of the impending budget crisis. Plaintiffs assert that Mayor-elect LaPolla learned of the budgetary problems after he sent the notices. Defendants, of course, assert that Mayor-elect LaPolla learned of the budget deficit before sending the notices and that such knowledge was the main reason for the employee terminations. While the court is inclined to accept plaintiffs' version of this event, such a finding would not be dispositive of the question of whether plaintiffs were discharged in violation of their constitutional rights.

 In order to comply with certain State Labor Department regulations and to facilitate the orderly separation of the terminated City employees, Comptroller Nelson informed Mayor LaPolla that he would be required to supply reasons for the employee terminations.Mayor LaPolla communicated this requirement to Corporation Counsel Festine, who then prepared a memorandum listing the employees who where being terminated and the reasons therefore. See Plaintiffs' Exhibit 3. Plaintiffs have made much of the memorandum and conclude that the reasons for discharge enumerated therein establish that the employee terminations were politically motivated. Mr. Festine testified that he prepared the list at Mayor LaPolla's direction and the reasons for the various employee terminations were supplied solely to comply with Comptroller Nelson's demands. Thus, Mr. Festine stated that the reasons listed in the memorandum were really an afterthought and not truly reflective on the actual reasons for the terminations. The court accepts Mr. Festine's explanation of the memorandum and finds that the statement enumerated therein are not truly reflective of Mayor LaPolla's reasons for terminating the City employees.

 The terminated City employees met with Comptroller Nelson shortly after January 3, 1984, and Mr. Nelson explained the procedures to be followed in completing the necessary paperwork for separation. Mr. Nelson also answered questions put to him by the former employees, but was unable to properly respond to inquiries regarding the specific reasons for their terminations. On this issue the court finds that Comptroller Nelson neither directed nor had any personal involvement in the decision to terminate any City employees. Such a decision rested entirely with Mayor LaPolla, who freely admitted the same during his testimony.

 On February 22, 1984, nearly two months after the terminations, seven of the terminated City employees filed the instant action. These seven plaintiffs have brought this action purporting to represent a class of terminated City employees all alleging that they were discharged solely because of their political beliefs. Defendants have strenously opposed class certification on the ground that common issues of law and fact are not present among all of the putative class members and that plaintiffs have generally failed to meet the requirements of Fed. R. Civ. P. 23(a).


 The law is clear that the first amendment prohibits a public employer from discharging an employee because of his or her affiliation with a particular political party. Layden v. Costello, 517 F. Supp. at 862 (citing Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 ; Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 ). There is an exception to this rule, however, when the employee's political affiliation is relevant to the effective performance of his or her duties.

 In order to make a prima facie case of unlawful discharge, a plaintiff must show that his membership in a particular political party was a "substantial" or "motivating" factor in the public employer's decision to discharge him. Visser v. Magnarelli, 530 F. Supp. at 1169 (citing Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)); see also Nekolny v. Painter, 653 F.2d 1164, 1167-68 (7th Cir. 1981); Tanner v. McCall, 625 F.2d 1183, 1192-95 (5th Cir. 1980), cert. denied, 451 U.S. 907, 68 L. Ed. 2d 295, 101 S. Ct. 1975 (1981); Gannon v. Daley, 561 F. Supp. 1377, 1379 (N.D. Ill. 1983); Lewis v. Blackburn, 555 F. Supp. 713, 722 (W.D.N.C. 1983). Once such a showing has been made, the burden then shifts to the defendant to prove by a preponderance of the evidence that the employee's political affiliation was not a "substantial" or "motivating" factor in the decision to discharge the employee. Visser v. Magnarelli, 530 F. Supp. at 1169. See generally Mr. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. at 287 (defendant must show that it would have reached the same conclusion even in the absence of the constitutionally protected conduct).

 With regard to plaintiff's motion for class certification, plaintiffs purport to represent a class comprised of persons employed by the City of Utica in its various departments, bureaus, programs, agencies and offices whose employment was terminated due to the private political beliefs, activities and association of such employees. Before certifying such a class, the court must be convinced that plaintiffs have met their burden of proving that the numerosity, commonality, typicality and adequacy of representations requirements of Fed. R. ...

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