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COOPER v. TOWN OF EAST HAMPTON

January 17, 1995

ROBERT COOPER, Plaintiff, against TOWN OF EAST HAMPTON, et al., Defendants.


The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, Chief Judge.

 Plaintiff, Robert Cooper, moved this Court for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil procedure. On October 28, 1994, this Court denied the motion from the bench and dismissed the case without prejudice for lack of federal jurisdiction. Upon reconsideration, however, this Court hereby finds that it does have jurisdiction over this matter and that the case shall not be dismissed.

 BACKGROUND

 Robert Cooper is one of five elected members of the East Hampton Town Board in Suffolk County, Long Island. The other Board members are Nancy McCaffrey, Catherine Lester, Thomas Knobel and Stanton Bullock, the Town Supervisor.

 In an executive session of the Board, which was held in the Fall of 1993 and which was open to the public, Councilman Cooper discussed concerns he had about possible misconduct and discrimination by the East Hampton Police Department. *fn1" He said that various citizens of East Hampton had brought these concerns to his attention. Cooper, who was himself an East Hampton Police Officer for over 22 years, thus moved the Town Board to conduct an independent investigation into the Police Department and its procedures. Yet the other Board members opposed his request and declined to conduct any such investigation.

 In early 1994, Cooper discussed his concerns about the East Hampton Police with the editor of a local newspaper, called The Independent. On March 9, 1994, The Independent published an article, entitled "Misconduct Charges Erupt," in which it quoted Cooper as saying the following: "I'm relating what people come and tell me -- that we have a problem. I'm not saying anyone is racist, only that [the Board] should look into these allegations." The article also quoted Police Chief Thomas Scott and Town Supervisor Bullock as expressing their opposing viewpoints.

 In a Town Meeting on March 17, 1994, Cooper explained to the Board that he made the above-mentioned statements to The Independent in order to express the public complaints he had received in his capacity as a Town official.

 On March 30, 1994, Chief Scott filed a civil lawsuit against Cooper in the Supreme Court for Suffolk County, (case of "Scott v. Cooper, " File No. 94-7113), alleging two counts of defamation based upon Cooper's press statements. In accordance with New York Public Officers Law § 18, as well as § 20-6 of the East Hampton Town Code, Cooper made an application for the Town to pay for his legal defense in the defamation suit. *fn2"

 On April 26, 1994, the East Hampton Town Attorney, Cynthia Ahlgren Shea, prepared a sixteen-page memorandum of law for the Board recommending that, under State law, Section 20-6 of the Town Cede, as well as common law precedent, the Town was required to defend Cooper in the defamation suit unless and until a court ordered otherwise. *fn3"

 At a Town Board meeting on May 6, 1994, however, the Board rejected a proposed Resolution to retain legal counsel for Cooper. Although Thomas Knobel voted in favor of the Resolution, Stanton Bullock and Catherine Lester voted against it, while Robert Cooper and Nancy McCaffrey abstained. Thus, the Resolution was rejected by a vote of 2 to 1. Councilman Knobel made the following statements to the East Hampton Star about why he voted in favor of the Resolution:

 
It's the principle. I can't see how we could deny the man a defense without prejudging the facts of the lawsuit. . . . I would be predisposed to allow anyone who thinks he's acting in an official capacity to have the protection afforded an official.

 Cooper's Verified Amended Complaint at P 30. Councilwoman McCaffrey told a local newspaper that she abstained from voting because:

 
Our Town Attorney has said we have to defend [Cooper], but I don't want to agree with that. . . . I think Cooper's allegations have done irreparable harm to our Police Department, and ...

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