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September 13, 1993

MONA A. ORANGE, et al., Plaintiffs,
COUNTY OF SUFFOLK, et al., Defendants.

The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Now before the Court is Defendants' motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the federal claims upon the ground that the complaint fails to state a claim upon which relief may be granted. Defendants further seek to dismiss the state claim on statute of limitations grounds or, in the alternative, that upon the dismissal of the federal claims, this Court decline to continue to exercise supplemental jurisdiction over the state claim. Finally, the defendant legislators seek attorney's fees pursuant to 42 U.S.C. § 1988. For the reasons stated below, Defendants' motion is granted in part and denied in part.


 Plaintiffs make the followings allegations: (1) their supervisor, a registered Democrat who was appointed in April 1989 to a statutory five-year term as the Suffolk County Commissioner of Social Services, was a target of a Republican patronage scheme; (2) Defendants conspired to force the Commissioner's resignation by subjecting her to political and economic pressure through an unlawful reorganization of her Department, including the abolishment of Plaintiffs' positions; (3) in furtherance of this political patronage scheme, Defendants conspired to take adverse employment actions against only non-Republican Civil Service employees; (4) Defendants carried out this scheme through the adoption of budgetary Resolution No. 53-1992 (the "Resolution") by the Republican-controlled Legislature; (5) said Resolution purported to "effectuate cost avoidance and/or cost savings of approximately three hundred thousand dollars during fiscal year 1992"; and (6) in actuality, the Resolution resulted in a negligible, if any, cost savings.

 In total, the Resolution abolished fifteen positions in the DSS. Three of those positions were vacant, three were held by Republicans, two by political independents, and the remaining seven by Democrats. Plaintiffs contend, however, that none of the three "affected" Republicans was actually adversely affected by the resolution: two never lost their jobs, and the third was initially demoted, but then promoted by defendant Gaffney to a grade higher than she had at the time the resolution was adopted. Conversely, all but one of the remaining nine individuals were either fired or demoted.

 Plaintiffs further allege that the following incident involving Douglas R. LaLone, a County Civil Service employee within the DSS, is demonstrative of Defendants' alleged patronage scheme. LaLone, a Democrat, learned that his position was listed in the Resolution and would ultimately be abolished. Thereafter, he spoke with politically influential Republicans, including John Powell, the Chairman of the Republican Party for the Town of Brookhaven (not a party to this suit). Because LaLone then changed his party affiliation to Republican and agreed to other terms imposed on him by Powell, including selling or purchasing approximately $ 1,500 in tickets to a Republican fundraiser, LaLone's name was stricken from the Resolution.

 Plaintiffs also allege that Defendants' patronage scheme is evidenced by the fact that they chose to abolish the position held by a Democrat, plaintiff Maxine Batson, rather than one held by a Republican, despite the fact that the Republican, who held the identical Civil Service title and grade within the DSS, was appointed to her position more than one and a half years after the Democrat was appointed. Defendants note, however, that the termination of Batson was not a violation of seniority rights because these employees were provisional, and seniority has no application to provisional employees.

 A. Absolute Legislative Immunity Applies to County Legislators

 The Legislator defendants contend that they are entitled to absolute legislative immunity for their act of voting for Resolution No. 53-1992. It is settled law that state legislators are absolutely immune from suits for damages under § 1983 for acts taken in their legislative capacity. Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951). Furthermore, "the claim of an unworthy purpose does not destroy the privilege. . . . The privilege would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Id. at 377.

 In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979), the Supreme Court extended the doctrine of absolute legislative immunity to regional legislators. Id. at 405. The Court, however, expressly reserved the question of whether absolute immunity applies to legislators at the local level. Id. at 404, n. 26.

 Subsequently, at least nine circuit courts have addressed this question, and all have ruled that absolute legislative immunity does extend to local legislators who are sued in their individual capacity. See, e.g., Aitchison v. Raffiani, 708 F.2d 96, 99-100 (3d Cir. 1983); Reed v. Village of Shorewood, 704 F.2d 943, 952-53 (7th Cir. 1983); see also Herbst v. Daukas, 701 F. Supp. 964, 966-67 (D. Conn. 1988); Dusanenko v. Maloney, 560 F. Supp. 822, 826-27 (S.D.N.Y. 1983), aff'd on other grounds, 726 F.2d 82 (2d Cir. 1984); Goldberg v. Village of Spring Valley, 538 F. Supp. 646, 649 (S.D.N.Y. 1982). Furthermore, in dicta, the Second Circuit recently adopted the same position, quoting Dusanenko for the proposition that there is "'no material distinction between the need for insulating legislative decision making at the state or regional level, and a corresponding need at the municipal level.'" Goldberg v. Town of Rocky Hill, 973 F.2d 70, 72-73 (2d Cir. 1992).

 Nevertheless, Plaintiffs contend that the legislator defendants are not entitled to absolute legislative immunity for the claims against them in their individual capacity. Plaintiffs note that the Second Circuit has never actually held that absolute legislative immunity applies to local legislators. Furthermore, Plaintiffs contend that Forrester v. White, 484 U.S. 219, 98 L. Ed. 2d 555, 108 S. Ct. ...

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