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VERBEEK v. TELLER

September 29, 2000

THOMAS G. VERBEEK, PLAINTIFF,
V.
CONRAD TELLER, INDIVIDUALLY, VINCENT TOOMEY, INDIVIDUALLY, ROBERT NORDMAN, INDIVIDUALLY, FREDERICK HAGER, INDIVIDUALLY, NEIL HANRAHAN, INDIVIDUALLY, RAYMOND DEAN, INDIVIDUALLY, MARK RAYNOR, INDIVIDUALLY, ORA BELL BARNETT, INDIVIDUALLY, ANN SCRICCA, INDIVIDUALLY, AND THE INCORPORATED VILLAGE OF WESTHAMPTON BEACH, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

Plaintiff Thomas G. Verbeek ("Verbeek") commenced this action against defendants Village of Westhampton Beach ("Village") and various Village trustees, police officers, and counsel pursuant to 42 U.S.C. § 1983, alleging violations of his First Amendment rights to free speech, to free association, and to petition the government for redress of grievances; Fourth Amendment right to be free from unlawful search and seizure; and Fourteenth Amendment right to equal protection; he also purports to assert state supplemental claims. The individual defendants are Police Chief Conrad Teller ("Teller"); Police Officers Robert Nordman ("Nordman"), Frederick Hager ("Hager"), and Neil Hanrahan ("Hanrahan"); Police Officers and Trustees Raymond Dean ("Dean") and Mark Raynor ("Raynor"); Trustee Ora Bell Barnett ("Barnett"); and Village counsel Vincent Toomey ("Toomey") and Ann Scricca ("Scricca"). Presently before the Court is defendants' motion to dismiss pursuant to Rules 12(b) and 12(h)(3) of the Federal Rules of Civil Procedure. Plaintiff opposes the motion.

I. BACKGROUND

For present purposes, the allegations of the complaint, which are accepted as true, can be summarized as follows. Verbeek was employed as a police officer in the Village until his termination on November 23, 1998, following the second of two disciplinary proceedings brought against him by the Village. During his employment, and prior to the first disciplinary proceeding, Verbeek alleges that he complained about a variety of illegal and improper activities by various Village police officers and their relatives, some of whom Verbeek had arrested. On or about February 21, 1996, Teller had charges brought against Verbeek for dereliction of duty, allegedly as a result of Verbeek's "repeated expressions of concern regarding the [alleged] wrongdoing" by various police officers and their relatives. Complaint ¶ 16. Until then, Verbeek allegedly had a clear police record for over 11 years.

On March 21, 1996, a non-public hearing was commenced, but was then discontinued after a witness allegedly testified that one of the "principal charges against [Verbeek] was false." Complaint ¶ 17. The Village was permitted to amend the charges, and on March 26, 1996, further disciplinary charges were brought against Verbeek, including charges for leaving his patrol car without authority, interfering with a departmental investigation, and making false entry on a police departmental record. A hearing was then commenced before Hearing Officer Robert Kearon ("H.O.Kearon"). During the hearing, Verbeek raised a "whistleblower" defense under New York State Civil Service Law § 75-b. On July 28, 1996, H.O. Kearon rejected Verbeek's whistleblower defense and found Verbeek guilty of certain charges of dereliction of duty and insubordination.

After the hearing, Teller "summarily demoted" Verbeek to patrolman, subordinate to Hager. Complaint ¶ 21. In demoting Verbeek, Teller allegedly was motivated "in whole and/or in substantial respect by reason of [Verbeek's] evidence, adduced at the disciplinary hearing, regarding corruption and/or maladministration of the Police Department and criminal activity engaged in by members of the Department." Id. The demotion was ratified by the Village Board of Trustees (the "Board").

On August 7, 1996, Verbeek returned to duty and discovered that his locker at police headquarters had been broken into and that his personal and other property had been stolen. During August 1996, Teller allegedly issued orders forbidding Verbeek from (1) speaking to the Village trustees; (2) reporting the burglary to other law enforcement agencies, including the FBI; (3) meeting, or requesting to meet, with any other police officer in the department; and (4) supervising any other police officer in the department. In addition, Teller allegedly forbid other officers from speaking with Verbeek about the disciplinary hearing, barred outside law enforcement agencies from investigating the burglary, and identified two police officers as suspects in the burglary. Moreover, Hager, allegedly at Teller's request, suspended Verbeek from the Police Benevolent Association ("PBA").

On or about October 29, 1996, Teller requested that additional disciplinary charges be filed against Verbeek, allegedly in retaliation for Verbeek's having "adduced evidence of misconduct and/or criminal behavior by members of the Department and/or certain of their family members." Complaint ¶ 31. However, Teller allegedly was "rebuffed" by the Village Board. Complaint ¶ 32. Nevertheless, Teller and Toomey allegedly "entered into an agreement to draft and prefer" additional "retaliatory disciplinary charges" against Verbeek, charges Teller "subsequently admitted were in substantial respect entirely fabricated." Id. On December 30, 1996, Toomey and Teller charged Verbeek, allegedly "without authority or permission of the Village Board and contrary to a directive of the [Village] Mayor," Complaint ¶ 33, and then suspended and expelled Verbeek from police headquarters.

The Board then discharged Toomey allegedly because of the "unlawful preferral" of charges against Verbeek, Complaint ¶ 34, and retained Scricca as Village counsel. Scricca then allegedly committed improper acts to "insur[e] that the second disciplinary proceeding move forward," including threatening or intimidating certain trustees and directing the destruction of certain evidence. Complaint ¶¶ 35-37. Ultimately, the Board approved the prosecution of disciplinary charges against Verbeek.

Verbeek elected to have the second hearing open to the public, including the media. H.O. Campasano allegedly demonstrated bias against Verbeek for having sought a public hearing.

During the second disciplinary proceeding, Teller, Hager, and Kametler, directly or through the PBA, allegedly sought to improperly influence Board members to secure Verbeek's termination. Teller and Hager, then PBA President, allegedly issued a memorandum instructing other police officers not to communicate with Verbeek, purportedly to impair Verbeek's defense of the charges and his exercise of associational rights.

Verbeek alleges that Teller, Doyle, and Nordman "agreed to and thereafter testified falsely" against Verbeek in an effort to secure his termination, purportedly to punish Verbeek for "having engaged in First Amendment protected speech." Complaint ¶ 47. Verbeek asserts that he proved during the hearing that (1) Teller perjured himself in the first disciplinary hearing; (2) that Hager had, with impunity, committed certain criminal acts; (3) that Scricca had tampered with the Board on the preferral of the charges and ordered the destruction of evidence regarding the fabricated nature of the charges; (4) that Teller and the PBA, acting through Hager, had directly sought to influence the Board during the pendency of the proceeding to secure Verbeek's termination; and (5) that Teller and other police department members "actively interfered" with Verbeek's ability to defend against the charges by, inter alia, "prohibiting" him from communicating with other police department members. Id.

Following the conclusion of the hearing, H.O. Campasano issued a "Hearing Officer's Report and Recommendation," dated October 30, 1998 (the "R & R"). In the R & R, H.O. Campasano rejected Verbeek's whistleblower defense and found Verbeek guilty of certain acts of misconduct and conduct unbecoming a police officer, and recommended that Verbeek's employment be terminated. Verbeek alleges that H.O. Campasano was biased against him and engaged in ex parte communications with Scricca. Verbeek also alleges that H.O. Campasano falsely accused Verbeek of attempting to bribe him. Moreover, according to Verbeek, H.O. Campasano caused a copy of the R & R to be delivered to the Village on or about October 30, 1998, but did not have a copy sent to Verbeek's counsel until three weeks later, thereby giving Verbeek's counsel only a matter of hours to prepare a submission concerning his punishment to the Village, which was scheduled to meet and vote on the R & R on November 23, 1998.

On November 23, 1998, the Board voted to terminate Verbeek's employment with the Village, as H.O. Campasano had recommended. Verbeek claims that defendant Trustees Dean, Raynor, and Barnett were: (1) "improperly influenced by reason of ex parte contacts between them and the PBA, Teller and/or Scricca which contacts were in part the subject of the disciplinary hearing record and in part were not evidenced by that record"; and (2) "motivated entirely and/or in substantial respect to punish [Verbeek] for his having expressed his opposition to Village corruption, misfeasance, malfeasance, criminal wrong doing [sic], and mismanagement of the Police Department." Complaint ΒΆΒΆ 53-55. Verbeek further asserts that the disciplinary proceedings constituted a selective prosecution against him for his exercise of First Amendment rights as "no disciplinary action and/or material disciplinary ...


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