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VERBEEK v. TELLER

August 21, 2001

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 officials, police officers, and counsel pursuant to 42 U.S.C. § 1983, alleging violations of his First Amendment rights to free speech, to freedom of association, and to petition the government for a 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 Village Trustees Raymond Dean ("Dean") and Mark Raynor ("Raynor"); Village Trustee Ora Bell Barnett ("Barnett"); and Village counsel Vincent Toomey ("Toomey") and Ann Scricca ("Scricca"). Presently before the Court is defendants' renewed motion to dismiss pursuant to Rules 12(b) and 12(h)(3) of the Federal Rules of Civil Procedure. For the reasons below, the motion is granted in part and denied in part.

I. BACKGROUND

The allegations of the complaint, which are accepted as true for purposes of this motion, are 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 complained about a variety of illegal and improper activities by various Village police officers and their relatives, some of whom Verbeek had arrested. These instances included the following: (1) in 1983, Verbeek arrested Nordman for driving while intoxicated and attempting to leave the scene of the accident; (2) in or about 1991, Verbeek arrested Police Officer James Kametler's ("Kametler") stepson for manslaughter; (3) in or about the summer of 1992, Verbeek reported to Teller a civilian complaint regarding Teller's (laughter's sale and use of illicit drugs; (4) in or about August 1992, Verbeek reported to the so-called "East End Drug Task Force" his own observations of Teller's daughter's sale and use of illicit drugs; (5) in or about October 1993, Verbeek complained that Hager had committed an attempted rape, the circumstances of which were covered up by police officers, including Teller and Police Lieutenant David Doyle ("Doyle"). In addition, these instances included, inter alia: (1) Verbeek's "expression of concern" that Hanrahan was permitted, with impunity, to threaten to kill Police Detective Edwin Hamor; (2) Verbeek's "expression of concern" since April 1994 that Kametler was permitted, with impunity, to threaten to physically injure a Village resident; (3) Verbeek's "expression of concern" in July 1995, that Hager was permitted to escape punishment for stealing gasoline from the Village: and (4) Verbeek's "expression of concern" that Hanrahan was permitted, with impunity, to be absent without leave from his police duties on or about November 3, 1995. Complaint ¶ 20.

On or about February 21, 1996, as a result of Verbeek's "repeated expressions of concern regarding the [alleged] wrongdoing" by various police officers and their relatives, Teller had charges brought against Verbeek for leaving his patrol car for extended periods of time, a charge that constituted a "dereliction of . . . duty." Complaint ¶ 16. Until then, Verbeek 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 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, inter alia, leaving his patrol car without authority, interfering with a departmental investigation, and making false entry on a police department 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 and adduced evidence regarding, inter alia: (1) Verbeek's criminal investigation of Teller's daughter for cocaine use/sale and driving while intoxicated; and (2) disparate treatment by Teller against Verbeek compared to treatment of Hager, Hanrahan, and Kametler, each of whom Verbeek alleged had engaged in illegal or improper conduct but was either not disciplined or received only a reprimand.

On July 28, 1996, following the hearing, H.O. Kearon found Verbeek not guilty of certain charges concerning dereliction of duty, threatening members of the police department, and interfering with a departmental investigation. However, H.O. Kearon found Verbeek guilty of certain charges of dereliction of duty and insubordination, allegedly based on "`suspect', albeit corroborated testimony of Hanrahan who [H.O. Kearon] concluded `did attempt to induce another witness to testify falsely' and on the `credible' testimony of Teller and Lt. Doyle." Complaint ¶ 20. H.O. Kearon rejected Verbeek's whistleblower defense, although he allegedly found that Verbeek did initiate or attempted to initiate criminal investigations of Teller's daughter. H.O. Kearon recommended that Verbeek be demoted from sergeant to police officer. H.O. Kearon later admitted that "he had `ruled harshly' against [Verbeek] "out of 27 years of knowing Chief Teller and the Chiefs association'" and that he "imposed demotion as a penalty out of `deference' to Teller." Complaint ¶ 22.

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. That same day, Teller ordered Verbeek not to speak with the Village trustees. During August 1996, Teller issued orders to Verbeek (1) forbidding him from reporting the burglary to other law enforcement agencies; (2) forbidding him to meet, or request to meet, any other officer in the department; and (3) forbidding him from supervising any other police officer in the department. Teller also issued an order forbidding other officers from speaking with Verbeek about the disciplinary hearing. Teller barred outside law enforcement agencies from investigating the burglary and thereafter identified two police officers as suspects in the burglary. Moreover, Hager, at Teller's request, suspended Verbeek from the Police Benevolent Association ("PBA").

On or about October 29, 1996, Teller allegedly "sought to prefer" additional disciplinary charges against Verbeek in retaliation against Verbeek for having "adduced evidence of misconduct and/or criminal behavior by members of the Department and/or certain of their family members." However, Teller allegedly was "rebuffed" by the Village Board. Nevertheless, Teller and Toomey "entered in an agreement to draft and prefer" additional "retaliatory disciplinary charges" against Verbeek, charges Teller "subsequently admitted were in substantial respect entirely fabricated." Complaint ¶ 32. On December 30, 1996, Toomey and Teller charged Verbeek, "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 because of the "unlawful preferral" of charges against Verbeek, Complaint ¶ 34, and retained Scricca as Village counsel. Scricca arranged to have the Village retain Nicholas Campasano ("Campasano"), a close personal friend and business associate of Scricca's law partner, as the hearing officer for the second disciplinary proceeding. Neither Scricca nor Campasano disclosed that relationship. To insure that the disciplinary proceedings moved forward, Scricca "personally made threats" to Trustee James Czachur ("Czachur"), who opposed Verbeek's prosecution. Complaint ¶ 36. As a result of the threats, Czachur recused himself and did not vote on whether to proceed with the second disciplinary proceeding. Scricca "took no action to compel" the recusal of at least two other trustees who favored Verbeek's prosecution, namely, Trustees Raynor and Wilenski (whose first name is not alleged), even though they had personal knowledge of the incidents underlying the disciplinary charges. Id. As a result, Raynor, Wilenski, and a third trustee approved prosecution of the disciplinary charges despite their being informed that the charges "were in substantial respect initially fabricated by Teller and Toomey." Complaint ¶ 37. Another trustee, Pescod (whose first name is not alleged), voted against the charges. Verbeek posits that but for Scricca's "improper conduct," the disciplinary charges "would never have been approved and/or prosecuted," and he never would have been terminated. Id.

To facilitate the prosecution, Scricca ordered Pescod to destroy documents that Pescod had prepared and in which Pescod "memorialized Teller's admission that he and Toomey had simply `made up' the disciplinary charges" and in which he expressed "serious concern regarding the motivations of the persons" advocating the charges. Complaint ¶ 38. Scricca also "intimidated" Pescod, causing him to refrain from discussing these matters with other Board members. Complaint ¶ 39.

The charges against Verbeek alleged that he: (1) conducted a motor vehicle registration check on a vehicle registered to Kametler's brother Robert; (2) responded to a burglar alarm after learning that a member of the police department (who owned an alarm company and who did not want the customer whose alarm was sounding fined for a false alarm) arranged to have Verbeek's response aborted; (3) questioned an order issued to him by Nordman, who at the time held a superior rank over Verbeek because Teller had "illegal[ly] promoted" Nordman to sergeant; (4) refused to obey an "admittedly illegal" order by Nordman to release a prisoner who had been arrested by Verbeek for driving while under the influence of drugs and possession of drugs; (5) failed to timely deliver a blood sample from that prisoner to the medical examiner's office; (6) threatened to arrest Nordman for interfering with the arrest/processing of that prisoner; and (7) failed to prepare a "street light list." Complaint ¶ 43.

Verbeek elected to have the second hearing open to the public, including the media. Campasano repeatedly expressed his "hostility to [Verbeek] and the media, manifesting a clear bias against [Verbeek] for having sought a public hearing and permitted [sic] the media to be present." Complaint ¶ 44.

During the second disciplinary proceeding, Teller, Hager, and Kametler each "sought to lobby" Pescod. Complaint ¶ 40. In this respect, Teller advised Pescod to "refrain from performing his duties as a Trustee, `not to interfere,' and let the hearing officer `be the final word.'" Id. As for Hager and Kametler, they engaged in a "heated discussion" with Pescod during the pendency of the disciplinary proceeding, "impliedly threatened" him for interfering with the process, and "cautioned" him not to "derail" the process. Complaint ¶ 41. In addition, Hager "manipulated" the PBA to lobby the Board for the purpose of securing Verbeek's termination, and Hanrahan arranged for the PBA hiring of a private investigator to "tail" Czachur and report on his "associational [activities] and/or meetings." Complaint ¶ 42.

Teller and Hager, then PBA President, 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. In addition, Teller sought to insure Verbeek's termination by telling the Board that if Verbeek was permitted to return to duty "his life would be in danger." Complaint ¶ 45.

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, when he falsely denied having knowledge of Verbeek's report to the "East End Task Force" concerning Teller's daughter's use/sale of cocaine; (2) Hager had, with impunity, engaged in an attempted rape, the circumstances of which Teller, Nordman, and others covered up by coercing the victim to sign a statement that she did not want to proceed with the matter; (3) Hager had, with impunity, stolen gasoline from the Village; (4) Scricca had tampered with the Board on the preferral of the charges, ordered the destruction of evidence regarding the fabricated nature of the charges, and coerced the recusal of one Board member whom she believed opposed (as retaliatory) the disciplinary charges, yet permitted other Board members who had personal knowledge of the underlying allegations in the charges to vote; (5) Teller and the PBA, acting through Hager, had directly sought to influence the Board during the pendency of the proceedings to secure Verbeek's termination; and (6) 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 members of the police department. Id.

Following the conclusion of the hearing, Campasano issued his determination in a "Hearing Officer's Report and Recommendation," dated October 30, 1998 (the "R & R"). In the R & R, Campasano found Verbeek guilty of certain acts of misconduct and conduct unbecoming a police officer, and recommended that Verbeek's employment be terminated. Campasano ruled that he had no jurisdiction to determine Verbeek's claims that: (1) "`Improper pressure was brought to bear on the Trustees to vote the Charges'"; (2) "`Trustees voted illegally and were illegally prevented from voting' on the preferral of the charges"; (3) "`Charges were brought illegally'"; (4) "`Labor counsel unlawfully tampered with the Trustees' vote'"; (5) "`Attempted intimidation of Trustee Czachur' had occurred"; (6) "`Failure to disqualify Raynor and Wilenski' compromised [Verbeek's] rights"; (7) "`Tampering with Trustee Pescod's vote and [intimidating him so as not to engage in] a discussion of the truthfulness of the Charges by the Board' had compromised [Verbeek's] rights"; (8) "`Unlawful combinations of management and labor working to defeat [Verbeek's] right to Union representation' had occurred"; (9) "`Improper pressure by Village employees' brought to influence the Board of Trustees had occurred"; (10) "Violations of New York State Civil Rights Law secrecy provisions had occurred with respect to [Verbeek's] records and impaired his defense"; and (11) "[Nordman] was unlawfully appointed `Acting' Sergeant and, hence, he had no legal authority over [Verbeek], either under Village Law, Police Department Regulations or under the Civil Service Law." Complaint ¶ 48 (quoting R & R at 7). Campasano rejected Verbeek's whistleblower defense and, in so doing, purportedly "superficially considered evidence" that Hager had not been disciplined for engaging in an attempted rape and stealing gasoline from the Village. Complaint ¶ 49.

In finding Verbeek guilty and recommending his termination, Campasano allegedly was "motivated in whole and/or in substantial respect by," inter alia, some or all of the following: (1) "his personal relationship with Scricca's law partner"; (2) "his animus towards the media and anger over [Verbeek's] requiring the conduct of a public hearing on the disciplinary charges"; (3) "his desire to retaliate against [Verbeek] for [Verbeek's] having adduced evidence indicating gross misconduct by Scricca"; (4) "his having repeatedly engaged in improper ex parte communications with Scricca during the conduct of the hearing"; and (5) "his hostility towards [Verbeek] by reason of [Verbeek's] compelling the relocation of the hearing to Westhampton Beach where local residents could attend same," thereby requiring Campasano to "indulge in substantial commutes to/from hearing sessions and prompted him out of animosity to deliberately falsify his purported findings of fact to suggest that the conduct of the hearing in Westhampton Beach resulted in a reduction of members of the public attending the hearing." Complaint ¶ 50. Campasano allegedly falsely accused Verbeek of attempting to bribe him. Id. Moreover, according to Verbeek, 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 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 action" was brought against other officers for "criminal activities and/or considerably more serious and actual infractions of Departmental regulations than those with respect to which [Verbeek] was charged" including (1) "Hanrahan's attempt to suborn perjury and intimidate a witness in the disciplinary proceeding"; (2) "Nordman's perjury regarding his claim that he had never been arrested by [Verbeek] for DWI and attempting to leave the scene of an accident"; (3) "Nordman's admittedly unlawful order to release a prisoner who had been arrested on DWI charges and possession of illicit drugs"; (4) "Doyle's admission that he had beaten a `Hymie'"; (5) "Doyle's cover-up of Teller's daughter's property damage motor vehicle accident, when she was apparently DWI and after which she fled the scene"; (6) Hager's attempted rape of a Village resident; (7) "Teller's threatening behavior when he sought to intimidate Trustee Pescod and dissuade him from performing his duties as Trustee with respect to the disciplinary proceeding"; (8) "Hager and Kametler's attempt to intimidate Pescod in that matter"; and (9) various other acts by Teller including "Teller's making of repeated anti-Semitic remarks"; "Teller's perjury during the first disciplinary [sic] as proven in the second ...


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