United States District Court, N.D. New York
January 14, 2004.
MARK CUSHMAN, Plaintiff, -vs- VILLAGE OF ILION, NEW YORK; THE BOARD OF TRUSTEES OF THE VILLAGE OF ILION, NEW YORK; JOHN GILMARTIN, individually and/or in his capacity as Mayor; jointly and severally, Defendants
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Mark Cushman ("plaintiff") brought suit against defendants
Village of llion, New York ("village"), the village board of trustees
("board"), and John Gilmartin ("Gilmartin"), individually and/or in his
capacity as village Mayor (collectively, "defendants"), alleging two
groups of federal claims*fn1: (1) deprivation of a property interest
without due process of law by failing to afford plaintiff notice and
opportunity to be heard prior to his termination, in violation of his
Fourteenth Amendment procedural due process rights; and (2) termination on
the basis of and in retaliation for the exercise of his constitutional
right to political party affiliation, in violation of his Fourteenth
Amendment equal protection and substantive due process rights.*fn2
Defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P.
12, and/or for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff
opposed. Oral argument was heard on October 10, 2003, in Utica, New York.
Decision was reserved.
II. FACTUAL BACKGROUND
The facts relevant to plaintiff's federal claims are as follows.
By board resolution dated September 15, 1976, the position of Village
Administrator was created to coordinate the village's governmental
departments and agencies, and to make recommendations to the board on
certain issues. At a January 12, 2000, board meeting, a motion was
unanimously passed appointing plaintiff Village Administrator. On
February 9, 2000, plaintiff signed the required oath of office, and it
was filed. Though several officials allegedly witnessed his taking the
oath, neither the village Clerk nor any other village official signed the
document attesting thereto.
The village held elections every two years. After the June 2000
elections, defendants claim that plaintiff was reappointed Village
Administrator. It does not appear as
though plaintiff specifically contests this alleged fact. Plaintiff
did not file a new oath of office upon his reappointment, but faithfully
discharged his duties until June 5, 2002.
On June 4, 2002, after contentious campaigning, Gilmartin, a Democrat,
won the mayoral election. That night, he and newly elected board members
were sworn into their offices. At a board meeting the next day, June 5,
2002, plaintiff was terminated as Village Administrator after first being
offered a chance to resign voluntarily. The minutes of the meeting note
that "due to the current makeup of the board the services of an
administrator are not needed." (Docket No. 9, Ex. C.) Defendants claim
that this was because Gilmartin, who as Mayor was on the board, planned
to be a full-time mayor, and the position of Village Administrator had
been created at a time when the then-mayor assumed only part-time
duties, making it difficult for him to complete all the tasks eventually
delegated to the administrator. Plaintiff claims that his termination was
due solely to his political affiliation as a Republican.
Defendants have moved to dismiss the complaint and/or for summary
judgment pursuant to Federal Rules of Civil Procedure 12 and 56.
A. Federal Rules of Civil Procedure 12 and 56 Standards
In deciding a Rule 12(b)(6) motion, a court "must accept the
allegations contained in the complaint as true, and draw all reasonable
inferences in favor of the non-movant; it should not dismiss the complaint
`unless it appears beyond a reasonable doubt that the plaintiff[s] can
prove no set of facts in support of [their] claim which would entitle
[them] to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Kaluczky.
v. City of White Plains, 57 F.3d 202, 206 (2d
Cir. 1995). However, conclusory allegations that merely state the general
legal conclusions necessary to prevail on the merits and are unsupported
by factual averments will not be accepted as true. See, e.g., Clapp v.
Greene, 743 F. Supp. 273, 276 (S.D.N.Y. 1990); Albert v. Carovano,
851 F.2d 561, 572 (2d Cir. 1988).
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson
v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Richardson v. New York
State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999).
Facts, inferences therefrom, and ambiguities must be viewed in a light
most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); Richardson, 180 F.3d at 436; Project
Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving
party has met the initial burden of demonstrating the absence of a genuine
issue of material fact, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56;
Liberty Lobby. Inc., 477 U.S. at 250; Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587. At
that point the nonmoving party "must do more than simply show that there
is some metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., 475 U.S. at 586. To withstand a summary judgment motion,
sufficient evidence must exist upon which a reasonable jury could return
a verdict for the nonmovant. Liberty Lobby. Inc., 477 U.S. at 248-49;
Matsushita Elec. Indus. Co., 475 U.S. at 587.
B. Due Process Second, Third, Fifth, and Sixth Causes of Action
Plaintiff claims in his second, third, fifth, and sixth causes of
action that he was deprived of a property interest in the Village
Administrator position without notice and opportunity to be heard, in
violation of his federal due process rights. To succeed on these claims,
plaintiff must prove: (1) that he indeed had a constitutionally protected
property interest in the position at the time he was terminated; and (2)
that he was not given the proper due process before being deprived of
that interest. See Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d
Cir. 2002). As it is dispositive, only the first requirement will be
There is no question that plaintiff's due process claims must fail
unless he had, at the time he was terminated, a constitutionally
recognized property interest in his position as Village Administrator.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct.
1487, 84 L.Ed.2d 494 (1985). Property interests in employment "are not
created by the Constitution. Rather, they are created and their
dimensions are defined by existing rules of understandings that stem from
an independent source such as state law." See Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972); Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 212 (2d
Public employees who can only be discharged for "just cause" are
entitled to procedural due process protections before being terminated.
See Otero v. Bridgeport Hous. Auth., 297 F.3d 142, 151 (2d Cir. 2002).
Section 36 of the Public Officer's Law lists several grounds
"misconduct, maladministration, malfeasance or malversation" for
removing "village . . . officer[s]" that the Second Circuit has indicated
are equivalent to just cause, see Rubino v. City of Mount Vernon,
707 F.2d 53, 54 (2d Cir. 1983), and offers procedural
protections to covered employees prior to removal. The position of Village
Administrator has been held to fall within the definition of "officer" in
Section 36. See Enos v. Vill. of Seneca Falls, 732 N.Y.S.2d 785, 786 (4th
Dep't 2001). As the Second Department has indicated, a "public officer"
is one "`whose position is created, and whose powers and duties are
prescribed, by statute and who exercises a great deal of initiative and
independent judgment.'" Stork v. Bd. of Trustees of Vill. of Medina,
579 N.Y.S.2d 797 (2d Dep't 1992) (citation omitted). Here, the position
of Village Administrator was created by a lawfully executed board
resolution, and involved a great deal of independent judgment, see infra
Section C, so it would appear as though he falls within the parameters of
Whether plaintiff, at the time of his termination, had a property
interest in his employment as Village Administrator by virtue of Section
36 depends upon two issues, both of which must be answered in the
affirmative for him to prevail: (1) whether plaintiff, as a public
officer, filed a timely oath of office upon his appointment in January
2000 and/or reappointment in June of 2000; and (2) whether plaintiff, at
the time of his termination, was "in office" within the meaning of
Section 36. Because as a matter of law plaintiff did not properly file an
oath of office, the second issue need not be discussed.*fn3
Because plaintiff was reappointed in June of 2000, under Section 10 of
the Public Officer's Law, he was required to take and file a properly
executed oath of office before becoming entitled to discharge his
official duties as Village Administrator upon reappointment. He had
thirty (30) days from the time he was notified of his reappointment in
June of 2002, or from the commencement of his term of office. N.Y. Public
Officer's Law §
30(1)(h). The duty to file the oath of office upon reappointment "is
personal to plaintiff, it is an act he is required to do and the office
became vacant by the mere failure to file the oath, whether or not the
defendants knew or were chargeable with notice that plaintiff had failed
to file his oath, and they are not required to make any declaration or
give any notice" to plaintiff of his obligation. Boisvert v. Ontario
County, 391 N.Y.S.2d 49, 51 (N.Y. Sup. Ct.), aff'd. 395 N.Y.S.2d 617 (4th
Dep't 1977). Because there is no evidence and plaintiff does not
purport that any exists that plaintiff filed the oath of office within
this time frame after his reappointment, "his [re]appointment was
vitiated and his office became vacant" under Section 30, Staniszewski v.
Lackawanna Mun. Hous. Auth., 595 N.Y.S.2d 160 (4th Dep't 1993), as of the
end of the thirty days following reappointment, Greshin v. Suffolk County
Legislature, 431 N.Y.S.2d 991, 993 (2d Dep't 1980) (Gullota, J.,
concurring in part, dissenting in part), adopted, 53 N.Y.S.2d 670
Assume that plaintiff was not required to file a properly executed oath
of office upon reappointment in June 2002 perhaps because the board
resolution creating the position, and the board meeting appointing
plaintiff, stated no period of service, or otherwise and that the
relevant document to be analyzed is the oath of office signed by
plaintiff upon his original appointment in January 2000. In other words,
he only had to file an oath of office once, upon his original
appointment. As noted, the obligation to timely file a properly executed
office falls to plaintiff. Thus, he was responsible for ensuring the
document was properly filed and free of substantive or technical
deficiencies, including the lack of a signature attesting to his taking
and signing the oath. He did not do so. Although the oath of office upon
appointment in January 2000 was signed by plaintiff and filed in
February, it was never signed by the Clerk or anyone else attesting
thereto. Though sympathy is most certainly expressed for plaintiff's
predicament, the office, as a matter of law, must be considered vacant at
the time plaintiff was terminated.
Though the office of Village Administrator was considered vacant thirty
days after plaintiff's appointment or reappointment, or notice thereof,
there is no question that he continued to fulfill the duties of the
office until his termination on June 5, 2002. Regardless of whether
plaintiff was considered a "holdover" within the meaning of Section 5 of
the Public Officer's Law, the office of Village Administrator was deemed
vacant during this time. Accordingly, regardless of whether the board had
the authority to abolish or terminate the position, plaintiff had no
constitutionally protected property interest at the time he was
terminated on June 5, 2002. Therefore, whether or not he was given proper
due process by his termination need not be discussed. His federal due
process claims will be dismissed.
C. Political Affiliation Seventh, Eighth, Ninth, and Tenth Causes of
In plaintiff's seventh, eighth, ninth, and tenth causes of action,*fn6
he claims he was improperly terminated on the basis of and/or in
retaliation for the exercise of his constitutionally protected right of
political affiliation.*fn7 "[Ap]iating oneself with a political party or
faction is [indeed] protected by the First Amendment."*fn8 Camacho v.
Brandon, 317 F.3d 153, 160 (2d Cir. 2003). The Supreme Court, first in
Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and
then in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574
(1980), has set forth the standards governing the right of a public
employee to politically affiliate or associate, and the right of a public
employer to take action against the employee because of such affiliation
or association. See McEvoy v. Spencer, 124 F.3d 92, 98 (2d Cir. 1997).
As a general rule, dismissals on the basis of political affiliation
sometimes referred to as "patronage dismissals" are prohibited. Elrod,
427 U.S. at 372-73. The prohibition,
however, is not absolute, and a public employer may terminate an employee
on the basis of political affiliation if it "further[s] some vital
government end by a means that is least restrictive of freedom of belief
and association in achieving that end[.]" Id. at 363. Ensuring that
implementation of the policies of a new administration not be undermined
by politically disloyal employees is an important enough government
interest to justify terminating some, but not all, of these dismissals.
Id. at 367. Particularly, if the employee at issue is a "policymaker,"
dismissal on the basis of political party affiliation is appropriate; if
the employee is a lower level member of the administration, it is not.
In Branti, the Court refined the policymaker exception to the
prohibition against patronage dismissals, explaining that "the ultimate
inquiry is not whether the label `policymaker' or `confidential' fits a
particular position; rather the question is whether the hiring [or firing]
authority can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public office involved."
445 U.S. at 518. "[A]s the Branti Court observed, political affiliation
is not always relevant even to the job of a policymaker." Bavaro v.
Pataki, 130 F.3d 46, 49 (2d Cir. 1997).
While this would appear to significantly diminish a public employer's
ability to terminate employees, even upper-level ones, on the basis of
political affiliation, the Second Circuit has interpreted Branti "as
saying that political affiliation is an appropriate requirement when
there is a rational connection between shared ideology and job
performance, a reading which would exempt most policymaking and
confidential employees. . . . Any other decision would severely handicap
an incoming administrator's ability to carry out his proposed policies,
thereby undercutting the effects of the electorate's vote." Savage v.
850 F.2d 64, 68 (2d Cir. 1988).*fn9 In other words, the term
"policymaker" is "`convenient shorthand for a person occupying a position
calling for party loyalty.'" McEvoy, 124 F.3d at 99 (quoting Reaan, 984
F.2d at 580). Whether a person is a policymaker is a question of
constitutional law for the court. Gordon, 110 F.3d at 888-89.
When determining if there exists a connection between "shared ideology
and job performance," the focus is not on what the employee actually did
in the course of his or her job, or whether he or she was actually
involved in policymaking decisions; rather, the focus is on the "inherent
duties of the position." Vona, 119 F.3d at 207; Gordon, 110 F.3d at 888.
The inherent duties are most often found in an official job description,
and the more vague or broad the description, the more likely the employee
works in a policymaking capacity. Vona. 119 F.3d at 207-08. The Second
Circuit has enunciated several non-exhaustive, non-exclusive factors to
be examined when determining if the inherent duties of a position are
rationally connected to a need for shared ideology, including whether the
employee at issue: "(1) is exempt from civil service protection, (2) has
some technical competence or expertise, (3) controls others, (4) is
authorized to speak in the name of policymakers, (5) is perceived as a
policymaker by the public, (6) influences government programs, (7) has
elected officials, and (8) is responsive to partisan politics and
political leaders." Vezzetti, 22 F.3d at 486.
The last five factors take on "primary importance" in the analysis, and
collectively ask "whether the employee in question is empowered to act
and speak on behalf of a policymaker, especially an elected official."
Gordon, 110 F.3d at 890; see also Reaan, 984 F.2d at 580 ("There is no
likely circumstance in which a shared ideology is more important than
when an elected official appoints a deputy who may act in his or her
stead"). If it is proven that an employee is to routinely act and speak
on behalf of a policymaker, whether the last five factors are satisfied
"can only be answered in the affirmative." Butler, 211 F.3d at 744.
By resolution dated September 15, 1976, the position of Village
Administrator came into being in order "to create central administrative
responsibility to coordinate and control all of the divisions and
agencies of Village government." (Docket No. 9, Ex. B; Docket No. 15, Ex.
B.) The primary duties of the Village Administrator were to "develop
over-all policies and standards; assist operating agencies in application
of policy; and coordinate the work of departments to assure smooth
operation of [the] Village government." Id. He or she was also
specifically responsible for, inter alia: (1) "[i]mprov[ing] budget
procedures and decid[ing] priorities"; (2) "[m]ak[ing] recommendations to
Village Board regarding operations of Departments"; (3) "[m]ak[ing]
recommendations and advis[ing] Board of Village business"; (4) "[w]orking
closely with Village Attorney"; (5) [a]ttend[ing] negotiating sessions
with Departments"; (6) "[a]ttend[ing] regular Board meetings and others
upon request"; (7) [p]rovid[ing] direct line of communication for taxpayer
complaints and problems . . . for action from employee(s) of correct
department"; (8) "[being an] [e]x-officio member of Planning,
Traffic, Urban Renewal and Zoning Boards"; and (9) "[c]oordinat[ing] and
controll[ing] use of any [federal and state] funds received." Id.
Clearly, the Village Administrator was vested with considerable
responsibility and discretion regarding major functions of village
government including budget and operations-related matters as well as
community relations that the then-mayor did not believe he could
handle. With respect to the latter, the Village Administrator was
essentially a public face for dealing with citizen concerns and
complaints. The Administrator also was to serve as a chain of command
link between the various village departments and agencies and the board
of trustees, and advise and make recommendations to the board on several
The Village Administrator was not just to execute specifically
delineated orders. He or she was to be creative and innovative, and was
installed to do the legwork in solving major village puzzles, and
coordinating the activities of, essentially, the entire government.
Independent judgment was most certainly required, if not an outright
indispensable job requirement. Embodied in many decisions the Village
Administrator was to make were key policy decisions regarding finance,
programs, and interaction with the community. It must be stated as a
matter of law that this position fits within the admittedly broad
confines of the policymaking definition as interpreted by the Second
Circuit. As such, it was permissible for the board to terminate plaintiff
on the basis of his political party affiliation, and the seventh,
eighth, ninth, and tenth causes of action will be dismissed.*fn10
D. Remaining State Claims
As no federal claims remain in this case, jurisdiction over the state
law claims asserted by plaintiff in the first and fourth causes of
action is declined.
Because of his failure to file a properly executed oath of office,
plaintiff did not have a constitutionally protected property interest in
his employment as Village Administrator at the time he was terminated on
June 5, 2002. Further, it was permissible for plaintiff to be terminated
on the basis of political affiliation.
Accordingly, it is
1. Defendants' motion to dismiss and/or for summary judgment is
2. The first and fourth causes of action in the complaint are DISMISSED
without prejudice; and
3. The second, third, fifth, sixth, seventh, eighth, ninth, tenth, and
eleventh causes of action in the complaint are DISMISSED with prejudice.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.