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July 21, 1995

MICHAEL J. AFFRUNTI, L. DONALD JAFFIN, JOHN L. MOLLOY, JR., EDWARD S. SMITH, and KATHLEEN W. FORMAN, Plaintiffs, against BENJAMIN L. ZWIRN, MAY W. NEWBURGER, ANTHONY D'URSO and BARBARA J. JOHNSON, as individuals and in their capacity as members of the Town Board of North Hempstead, and the TOWN OF NORTH HEMPSTEAD, Defendants.

The opinion of the court was delivered by: PLATT



 PLATT, District Judge.

 The plaintiffs move this Court for permission to reargue the motion for summary judgment which the Court heard and granted in favor of the defendants on May 12, 1995. For the reasons set forth herein, the plaintiffs' motion is hereby denied.


 Plaintiffs Michael J. Affrunti, L. Donald Jaffin, John L. Molloy, Jr., Edward S. Smith and Kathleen W. Forman, are all current or former Republican members of the North Hempstead Town Board of Zoning and Appeals (hereinafter the "BZA"). The BZA is a quasi-judicial, autonomous body, comprised of members who are individually appointed by the North Hempstead Town Board (hereinafter the "Board"). Pursuant to New York Town Law § 267(1), BZA members serve five-year terms and may only be removed for cause after receiving notice and a hearing.

 In accordance with Town Law, the Board sets the compensation for BZA members on an annual basis in the "part town" budget, which is financed by residential taxes. Town Law § 267. In the early 1990s, the Board was comprised of Republicans, with the exception of the Town Supervisor, Benjamin Zwirn, a Democrat. In 1990, Zwirn proposed a tentative Town budget for fiscal year 1991 which provided for tax and spending cuts. Zwirns' proposed budget cuts included a substantial reduction in the salaries of BZA members. The BZA Chairman, Michael Affrunti, protested these reductions, however; and the Board ultimately rejected Zwirn's 1991 budget in its entirety.

 The following year, Zwirn proposed a budget for fiscal year 1992, which also entailed significant cuts in spending, coupled with very substantial reductions in BZA compensation. In accordance with Town Law, Zwirn submitted this proposed budget at a public hearing on October 15, 1991, at which time Chairman Affrunti testified against the BZA salary cuts. The Board, which was still controlled by Republicans, voted to override certain aspects of Zwirn's proposed budget. Yet it left the BZA salary reduction plan intact.

 After the November, 1991 elections, the Board was comprised of Democrats Benjamin Zwirn, May Newburger, Anthony D'Urso and Barbara Johnson, as well as Republican Gerard Cunningham. On November 19, 1991, before these newly-elected members took office, the incumbent Republican-dominated Board voted, once again, on Zwirn's proposed budget, yet neither passed nor further modified it. This was due to the fact that three Board members abstained from the vote, one voted against the proposed budget, and Zwirn alone voted in favor of it.

 Because the Board failed to either adopt or reject the proposed budget within the statutory deadline, Zwirn's preliminary 1990 budget, as amended by the Board's vote in October, 1991, became the final budget for fiscal year 1992. This occurred by operation of North Hempstead Town law on November 20, 1991. On January 1, 1992, the newly-elected Board members Newburger, D'Urso and Johnson took office, joining Zwirn and Cunningham. At a Town meeting on January 7, 1992, the Board adopted certain resolutions which implemented the new budget provision concerning the compensation of approximately fifty (50) Town officials, including BZA members. More specifically, the Board members, including Republican Gerard Cunningham, unanimously voted to cut the annual salaries of BZA members from $ 18,500 per year to $ 2,000 per year. The Board also reduced the annual salary of BZA Chairman Affrunti from $ 29,000 per year to $ 3,000 per year. These reductions both amounted to salary cuts of approximately eighty-nine (89) percent. *fn1"

 Despite the cuts in compensation and benefits, the plaintiffs herein remained on the BZA and accepted their reduced salaries. On March 27, 1992, however, they brought this federal action pursuant to 42 U.S.C. §§ 1983, 1985(1) and (3), as well as Town Law § 267. In the action, the plaintiffs allege that the defendants conspired to reduce their salaries and benefits so drastically that it would constitute a constructive termination and would force the plaintiffs to resign from the BZA. The plaintiffs contend that the defendants did this solely because the plaintiffs are Republicans and the defendants wished to fill the vacant BZA seats with fellow Democrats. The plaintiffs charge that such conduct violated their rights to free speech, free association and equal protection, privileges and immunities as guaranteed by the First and Fourteenth Amendments of United States Constitution.


 A. The Defendants' Motion To Dismiss

 On July 3, 1992, the defendants moved this Court to: (1) join necessary parties to the action pursuant to Federal Rule of Civil Procedure 12(b)(7); (2) dismiss the Complaint for failure to state a claim; and (3) sanction the plaintiffs pursuant to Federal Rule of Civil Procedure 11. In this Court's Memorandum and Order of September 3, 1992, the Court granted in part and denied in part the defendants' motion. Specifically, the Court declined to join those Board members who abstained from the January 7, 1992 vote because it found that they were not necessary parties. The Court also declined to impose Rule 11 sanctions upon the plaintiffs because it determined that their suit was not frivolous. Finally, the Court denied the defendants' motion to dismiss the first, third and fourth claims in the Complaint, yet it granted the motion to dismiss the second and fifth claims.

 With respect to the first claim under 42 U.S.C. § 1983, the Court found that the plaintiffs sufficiently pleaded that the defendants reduced their salaries and benefits solely for political reasons, thereby violating the doctrine of Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (dismissal of a public employee for political patronage reasons violates that individual's First Amendment rights). *fn2"

 With regard to the third claim, the Court found that the plaintiffs sufficiently pleaded the following under 42 U.S.C. § 1985(3): (1) a conspiracy to deprive them of "a proper, reasonable fair and adequate living wage," (Complaint P 82), (2) an act in furtherance of the conspiracy, (3) injury as a result of the conspiracy, and (4) membership in a protected class, namely the Republican Party.

 Finally, the Court declined to dismiss the plaintiffs' fourth claim wherein the plaintiffs alleged that the reductions in salary and benefits constituted a constructive termination under Town Law § 267(1), which provides that a BZA member may not be removed except "for cause and after a public hearing." The Court held that, taking the allegations of the Complaint as true as it must, the plaintiffs sufficiently pleaded a violation of Section 267(1). *fn3"

 The Court granted the defendants' motion to dismiss the plaintiffs' second and fifth claims, on the other hand, because it found that the plaintiffs failed to sufficiently plead a conspiracy under 42 U.S.C. § 1985(1) *fn4" or a breach of contract. *fn5" See Memorandum and Order 92-CV-1512 (Chief J. Platt, September 3, 1992) at 17.

 B. The Defendants' First Motion for Summary Judgment

 On April 15, 1994, the defendants moved this Court for summary judgment; and on April 22, 1994, the Court heard oral argument on that motion. The Court denied the motion from the Bench without prejudice to renew it after the plaintiffs amended their Complaint. The Court based its decision upon the fact that it was concerned that the plaintiffs might have a claim under the Equal Protection or Due Process Clauses of the Constitution. See Transcript of Oral Argument on Motion for Summary Judgment (April 22, 1994) at 16. Thus, the Court allowed the plaintiffs thirty (30) days to amend their Complaint with respect to these allegations. The Court said on the record that it was not passing upon the plaintiffs' freedom of association claim under the First Amendment. In fact, when asked by defense counsel if the Town has an absolute right to decide whether a libertarian or Republican sits on the BZA, the Court replied:

I don't know whether you do anymore. That's what I'm suggesting to you. You have no right to prevent me if I'm black from holding the job or if I'm a Chinese or what have you. What I'm saying is political affiliation may also be out on the same score. . . . [The question of whether political affiliation is out on the same score] may be an issue of fact here. The Board of Zoning based on my experience with the local government is not what we normally think of as a policy-making body. They decide individual cases.

 Transcript of oral argument on the defendants' first summary judgment motion (April 22, 1994) at 17-18 (emphasis added).

 C. The Defendants' Second Motion For Summary Judgment

 On May 5, 1994, the plaintiffs amended their Complaint; and on May 5, 1994, the defendants moved this Court for summary judgment a second time. The Court heard oral argument on May 12, 1995, after which it granted summary judgment in favor of the defendants. In so ruling, the Court reiterated that it denied the defendants' previous summary judgment motion because it was concerned that they might have an equal protection or due process claim. See Transcript of Oral Argument on Defendants' Second Motion for Summary Judgment (May 12, 1995) at 8. After careful review of the plaintiffs' Amended Complaint and the parties' briefs in support of or opposition to the defendants' second summary judgment motion, however, the ...

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