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October 29, 1985

SAMUEL L. TAVANO, Plaintiff, -vs- THE COUNTY OF NIAGARA, NEW YORK, and GLENN S. HACKETT, as County Attorney for the County of Niagara, Defendants

The opinion of the court was delivered by: CURTIN


Plaintiff was terminated from his position as Assistant County Attorney of Niagara County on February 18, 1983. Relying on Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); and Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), plaintiff brought this action against the County and the County Attorney seeking damages and reinstatement.

 A non-jury trial was held on plaintiff's claim from December 4, 1984, until December 7, 1984. Post-trial briefs were then filed, and summations were heard. The court has carefully considered the evidence and the arguments of counsel and makes the following findings of fact and conclusions of law.

 Before his termination, plaintiff Samuel Tavano had a long association with Niagara County as County Attorney and then as an Assistant County Attorney. He held that post at the time of his termination. Mr. Tavano, who is a Republican, was appointed County Attorney in 1966 when the legislature changed from Democratic to Republican control. At that time, Branti and Elrod were not the law, and when he took office, Mr. Tavano replaced the Democratic Assistant County Attorneys with Republicans. During the trial, Mr. Tavano testified that he wanted Assistants working for him whose abilities were known to him, who were loyal to him, and who would carry out his instructions and enjoy his confidence. Mr. Tavano continued to serve as County Attorney until 1976. At that time, the Democrats again became the majority party in the legislature, and they appointed John Simon, a Democrat, to replace Mr. Tavano.

 On September 28, 1978, Mr. Tavano returned to County service when he was appointed by Mr. Simon as an Assistant County Attorney for Family Court duties only. From the time of his appointment in 1978 until his discharge, plaintiff's sole responsibility was as an attorney in the Family Court, handling some support cases, juvenile cases, persons in need of supervision, and paternity proceedings. The disposition of the cases assigned to him in Family Court were, for the most part, left to his discretion. It was up to him to determine whether pleas should be taken or whether cases assigned to him should be tried. There were no oral or written guidelines given to him by the County Attorney. He worked in court two days a week. On the remaining days, he was free to conduct his practice. His status remained the same when Mr. Hackett, a Democrat and defendant in this case, became John Simon's successor in office, in January of 1982. Neither County Attorney designated him pursuant to section 502, subdivision 5, of the County Law to take over any of the duties of the County Attorney in the event of his sickness or other disability.

 Mr. Tavano was not called upon to advise anyone in the County legislature or any department heads on matters of governmental policy. He did not oversee any other employees. Nor was he closely supervised in his duties by either John Simon or his successor, Glenn Hackett.

 Mr. Hackett testified that he retained Mr. Tavano, although he did so with reservations. He knew Tavano had been a County employee for some time and had much experience, but he described him as "somewhat laid back . . . probably didn't push things to the ultimate in handling matters . . .." (Item 29, Vol. IV, p.39.) Mr. Tavano was not dismissed until February of 1983, 13 months after Mr. Hackett became the County Attorney.

 As of January 1, 1982, Mr. Tavano and other Assistant County Attorneys were put on the payroll of the Social Services Department. This was done to obtain reimbursement from the State of New York for their work in Family Court. This was not available from the State unless this bookkeeping transfer was made. Although Mr. Tavano was paid through the Social Services Department, he remained an Assistant County Attorney until his termination (Exh. 9).

 Several months after Mr. Tavano left his position, there was a major reorganization. In August and September of 1983, new positions were created in the Department of Social Services for Assistant Social Services attorneys who were Civil Service employees appointed directly by the Commissioner of Social Services, not the County Attorney. Several Assistant County Attorneys were transferred to the Department of Social Services (Item 29, Vol. IV, p.113). James Rodgers, who was Mr. Tavano's replacement, eventually served in the Department of the Social Services.

 On September 1, 1982, Louis Scozzafava, a Democrat, was appointed the Commissioner of Social Services. In reviewing his department's procedures, he became aware of criticism by several of his caseworkers concerning a lack of cooperation by all of the Assistant County Attorneys handling their cases in Family Court, including Mr. Tavano. Scozzafava testified that he came to the conclusion that there had been lack of preparation by Assistant County Attorneys, perhaps improper handling of some cases, and lack of cooperation and communication between caseworkers and the attorneys (Item 29, Vol. IV, pp.100-01, 136-38). He informed Mr. Hackett of these concerns. As Hackett understood Scozzafava, the goal was to create a more "business-like atmosphere." The Social Services Department was to be realigned, legal representation was to be improved, and the attorneys were to spend more time reviewing files with caseworkers (Item 29, Vol. IV, pp.28-29).

 A series of meetings was then scheduled between the caseworkers, Mr. Scozzafava, County Attorneys, and, on a few occasions, Family Court judges. These meetings were to seek solutions to the problems raised by Mr. Scozzafava. There is some dispute in the record as to whether Mr. Tavano was invited to all the meetings. Mr. Tavano claims he was not. However, Mr. Hackett's secretary testified that, as part of her duties, she notified plaintiff and the others to attend staff meetings (Item 29, Vol. III, p.21). Mr. Hackett told his secretaries to notify all Assistant County Attorneys from Family Court of these meetings (Vol. III, p.30). Mr. Tavano attended only one meeting.

 Mr. Hackett testified that Scozzafava complained to him repeatedly about Tavano's performance. "No specific complaints about his in court procedures, but basically complaints about his failure to kind of adapt to the new policy that Mr. Scozzafava was attempting to institute with regard to communication between his caseworkers and the Assistant County Attorneys." (Vol. IV, p.34.) Hackett said Scozzafava also had complaints about some of the other attorneys, specifically Democrats Scirto and Heim (Vol. IV, p.95).

 Hackett testified that he began to think of terminating Tavano in the fall of 1982 after hearing of the criticism by Mr. Scozzafava (Item 29, Vol. IV, pp.40-41). At that time, he had not discussed the possible termination with anyone else. He decided to terminate plaintiff in December of 1982 and informed Scozzafava of his decision at that time (Vol. IV, p.134). Once he had made the decision, Mr. Hackett said he discussed the problem with Anthony Quaranto, a Democrat who was then Chairman of the Niagara County legislature, and another Democratic legislator, possibly James Sacco. Hackett advised the legislators about Scozzafava's complaints and told them he intended to fire plaintiff as of the first of the year (Vol. IV, pp.42-43). Hackett asked Quaranto to take his decision to terminate Tavano before the Democratic Caucus in the County legislature:.

 Mr. Quaranto took the matter before the caucus and notified Hackett that the caucus approved. Hackett believed that Quaranto had personal objections to firing plaintiff (Vol. IV, pp.42 and 58). Mr. Hackett testified that he would not have terminated Tavano if the legislators had been opposed. Once Hackett had secured their approval for firing Tavano, he sought clearance from the caucus to ...

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