- against -
VILLAGE OF MONTICELLO INC., THE BOARD OF TRUSTEES
OF THE VILLAGE OF MONTICELLO INC., JOHN DIUGUID,
MARK SCHULMAN, ROBERT FRIEDLAND, DAVID ROSENBERG
EVELYN VAN DERMARK, GLORIA CAHALAN, GLADYS WALKER
Respondents
Mark Schulman, Esq.
Attorney
JUSTICE VINCENT G. BRADLEY RULED:
In this Article 78 proceeding, the petitioners challenge a determination made by the Village of Monticello Board of Trustees to create a full-time position of Village Attorney. The petitioners also challenge what they refer to as a "musical chairs" switching of offices by the Mayor, the Village Justice and the Village Board which, petitioners argue, resulted directly from the Board's decision to create the full-time Village Attorney position.
The peititioners seek to invalidate the actions on the grounds that they were undertaken in an executive session of the Village Board of February 17, 1993 which was held in violation of the "Open Meetings Law" (Public Officers Law, Article 7). Specifically, petitioners allege that respondents violated Section 105 of the Public Officers Law which permits a public body such as a Village Board to discuss in executiv3e session only the matters specifically enumerated in paragraphs a. to h. of Section 104(1) (see, e.g. Sanna v. Board of Education, 107 M2d 267, mod. on other grounds, 85 AD2d 157, afftd, 58 NY2d 626).
The Court has reviewed the parties' submissions and concludes that the petition must be granted. At its February 17, 1993 meeting, the Village Board, voted to go into executive session pursuant to Section 105(1) to discuss "personnel, a contract and a legal issue." The board argues that this decision was properly made under paragraph f. of Section 105(1) which provides that in executive section a public body may discuss "the medical, financial, credit or employment history of a particular person or corporation or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation."
The Court rejects this argument. First, the reason stated on the record by the Board for conducting an executive session was insufficient to properly notify the public of the purpose of the executive ssion. If the Board members intended to discuss the employment status or history of a particular person as they claim in this proceeding that they did, when they voted to pass the motion for executive session, they should have stated that they were doing so to "discuss the employment, promotion, demotion (etc.) of a particular person" (see, e.g. Comm on Open Gov't OML-AO-1358).
Second, it is readily apparent from the submissions, particularly the affidavits of respondents Friedland, Rosenberg, Malloy, Cahalan, and Vandermark and the Village Manager's transmittal dated February 26, 1993, that the Board decided to create the Village Attorney position while in executive ssion. As to the former, in each of the affidavits (which are essentially identical), the individual respondents deny that they discussed or voted on a proposal to create this position while in executive session and claim that the discussion was largely devoted to the issue of growing dissatisfaction with the Village's attorneys. Given the fact, however, that this was the Board's final meeting until March 1, 1993 and the creation of the Village Attorney position was the first action taken by the Board at its March 1, 1993 meeting, their claim stretches creduity.
In fact, the averment made in each of the affidavits that "prior to the March 1, 1993 meeting" none of the affiants met "with the Mayor or any other Trustees with a quorum present" is, in effect, an admission that discussion took place on this issue among the Board members in such a manner as to circumvent the Open Meetings Law quorum requirement (Section 102(2)). As to the Village Manager's transmittal which states in part, in regard to the Village Attorney position, "[r]esolution terminating current position effective immediately (Monday, March 1, 1993 board meeting) and creation of new position by resolution," it speaks for itself. Once again, respondents strain believability in claiming that the transmittal, which also contains salary range and a detailed description of the position, was merely an evaluation of the position by the Village Manager rather than the embodiment of the Board's decision.
Accordingly, as the Board in creating this position made a policy decision this was a policy decision which was well outside any of the categories of discussion set forth in paragraphs a. - h. of Section 105(1), the decision was clearly in violation of the Open Meetings Law (1986 Comm on Open Gov't OML-AO-1335).
Furthermore, the actions taken by the Board on March 1, 1993, in accepting Mr. Schulman's resignation as Village Justice to assume the newly created Village Attorney position, in appointing Mayor Diuguid to succeed Mr. Schulman as Village Justice, in appointing Trustee Friedland to succeed Mr. Diuguid as Mayor, and in appointing Trustee Rosenberg as Deputy Mayor and Assessor Walker as Trustee were also improper as they were a direct consequence of the Board's actions taken in executive session. A review of the minutes of the Village Board's March 1, 1993 meeting, shows that the Board's actions in accepting the various resignations and in making the various appointments were taken without discussion and immediately after the vote to create the Village Attorney position. It is clear from such circumstances that the Board was merely ratifying decisions made earlier and away from the public.
In reaching this conclusion, the Court finds that respondents reliance on the portion of Section 105(1)(f) which states that a Board in executive session may discuss the "appointment... of a particular person..." is misplaced. In this Court's opinion, given the liberality with which the law's requirements of openness are to be interpreted Holden v. Board of Trustees of Cornell Univ., (80 AD2d 378) and given the obvious importance of protecting the voter's franchise this section should be interpreted as applying only to employees of the municipality and not to appointment to fill the unexpired terms of elected officials. Certainly, the matter of replacing elected officials, should be subject to public input and scrutiny.
Accordingly, the petition is granted in all respects. Because the evidence shows that the Board undertook the challenged actions with the intention of avoiding public participation, these actions must be invalidated (see, e.g. Previdi v. Hirsch 138 M2d[1958]). Ms. Shlevin shall submit a single order consistent herewith.
Dated: Kingston, New York
January 7, 1994
At a Special Term of the Supreme Court of the State of New York, held in and for the County of Sullivan, at the Ulster County Courthouse, Wall Street, Kingston, New York, on the
___ day of January, 1994.
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PRESENT:
Hon. Vincent G. Bradley
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VICTOR N. GORDON, ALEXANDER CHERVIOK,
Petitioners,
-against-
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ORDER
Index No.
1198-93
RJI#
52-10205-93
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VILLAGE OF MONTICELLO, INC., THE BOARD
OF TRUSTEES OF THE VILLAGE OF MONTICELLO,
INC., JOHN DIUGUID, MARK SCHULMAN,
ROBERT FRIEDLAND, DAVID ROSENBERG,
EVELYN VANDERMARK, GLORIA CAHALAN,
GLADYS WALKER
Respondents.
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An application having been made, pursuant to CPLR Article 78, by Notice of Petition and Petition dated May 17, 1995, for an Order pursuant to United States Constitution 1st and 14th Amendments, Federal Voting Rights Act; New York State Civil Practice Law and Rules Art. 78, Public Officers Law ("POL") Art. 5, 7, et al., General Municipal Law ("GML") Sec., 804, New York State Constitution; Code of Ethics of the Village of Monticello: (i) declaring the Respondents to be in violation of the provisions of the POL, Open Meetings Law ("OML") Art. 7; (ii) declaring the
meeting of the Executive Committee of the Board of Trustees of the Village of Monticello (the "Board") held on February 17, 1995, null and void; (iii) invalidating the action of the Board approving the creation of the position of full time Village Attorney taken on March 1st, 1~5 and declaring same null and void; (iv) invalidating the appointment of the Village dustice to the position of full time Village Attorney and declaring same null and void; (v) invalidating the appointment of the Mayor to the position of Village dustice and declaring same null and void; (vi> invalidating the appointment of the Trustee Friedland to the position of Mayor and declaring same null and void; (vii) invalidating the appointment of the Trustee Rosenberg to the position of Deputy Mayor and declaring same null and void; (viii) invalidating the appointment of the Tax Assessor Walker to Trustee and declaring same null and void; (ix) declaring the selection process to fill the positions of full time Village Attorney, Village dustice, Mayor, Deputy Mayor and Trustee to be arbitrary, capricious and contrary to law; (x) declaring Schulman, Diuguid, Friedland, Rosenberg and Walker to be in violation of the GML and the Village Code of Ethics; (xi) restraining and enjoining Respondents Schulman, Diuguid, Friedland, Rosenberg and Walker from performing the duties of their presently assumed and prior offices; (xii) declaring the positions of full time Village Attorney, Mayor, Village dustice, Deputy Mayor, Tax Assessor and Trustee to be vacant; (xiii) declaring the re-appointment of the Mayor and the Trustee position by the Board and the re-appointment of Village dustice by the Village Manager, which occurred at the Reorganizational Meeting of the Board held on April 7, 1995, null and void; (xiv) directing that the process for calling a special election be implemented forthwith; (xv) declaring Respondents to be in violation of the United States Constitution 1st and 14th Amendments, the Federal Voting Rights Act and the New York State Constitution; (xvi) awarding the costs of this action; (xvii) awarding attorneys fees of this action; (xviii) and for such other and further relief as to this Court may seem lust and proper; and
Said application having come on before the Court, and the Court, upon reading and filing the Notice of Petition, dated May 17, 1993, with Petition dated May 17th, 1993, Aff. of V. Gordon, dated May 17th, 1993, Aff. of A. Cherviok, dated May 17, 1993 with Ex. A.; Notice of Motion to Dismiss, dated dune 2, 1993with Affir. of M. Schulman, Esq., dated dune 2, 1993; Aff. of d. Malloy, Esq., dated dune 2, 1993 with Ex. A-B; Respondents Memorandum of Law, dated June 2, 1993; Aff.in Opp. by V. Gordon, dated June 7, 1993 with Ex. A-D~ Aff. of A. Cherviok, dated dune 7, 1993 with Ex. A-D; Aff. of L. Shlevin, Esq, dated dune 5, 1993; Petitioners Memorandum of Law dated dune 5, 1993 with Ex. A; Sur Reply Affir. of M. Schulman, Esq., dated dune 7, 1993 Amended Decision and OrdeF on Motion to Dismiss of the Court dated August 6, 1993; Answer of Respondents dated August 17, 1993; Petitioners Reply to Answer, dated September 1, 1993 with Exs. A-O; Petitioner's Memo of Law in Reply to Answer, dated September 1, 1993; Notice of Motion to Strke Petitioner's Reply, dated September 9, 1993 with Aff. by M. Schulman, Esq., dated September 9, 1993; Aff. in support of M. Schulman, Esq., dated September 15, 1993 Aff. in Opp. by L. Shlevin, Esq., dated September 14, 1995| Sur-Reply Aff. of M. Schulman, Esq., dated September 20, 1993; Decision and Order on Motion of the Court, dated October 8, 1993; Re-Notice of Petition, dated September 17, 1993; Aff. of V. Gordon, dated September 17, 1993, Aff. of A. Cherviok, dated September 17, 1993 with Exs. i and upon the Decision of the Court, dated January 7, 1993, and
The Court having found that the Executive Session Meeting of the Board, held on February 17, 1993, was in violation of Section 105 (I) subd. a. - h. of the OML as set forth under the New York State Public Officers Law OML; and having found that the Board's creation of the new position of the full time Village Attorney is in violation of the OML; and having found that the actions taken by the Board on March 1, 1993, whereby the Board accepted various resignations and made various appointments were improper and must be invalidatedl and having further found that the Respondents actions must be invalidated because they acted with the intent to disenfranchise the voters of the Village of Monticello contrary to law, and having granted the Petition dated May 17, 1993, in all respects,
NOW THEHEFORE, it is hereby,
ORDERED, ADJUDGED AND DECREED that the meeting of the Executive Committee of the Board of Trustees of the Village of Monticello held on February 17, 1993, is null and voidl and it is further
ORDERED, ADJUDGED AND DECREED that the actions of the Board taken on March lst, 1993, whereby the Board created the position of full time Village Attorneys is null and void; and it is further
ORDERED, ADJUDGED AND DECREED that the actions of the Board taken on March 1st, 1993, whereby the Board appointed the Village Justice, Mark Schulman to the position of full time Village Attorneys is null and void; and it is further
ORDERED, ADJUDGED AND DECREED that the office of Village Justice of the Village of Monticello is vacant; and it is further
ORDERED, ADJUDGED AND DECREED that the actions of the Board taken on March lst, l993, whereby the Board appointed the Mayors John Diuguids to the office of Village Justices is null and void; and it is further
ORDERED, ADJUDGED AND DECREED that the office of the Mayor of the Village of Monticello is vacant; and it is further
ORDERED, ADJUDGED AND DECREED that the actions of the Board taken on March 1st, 1993, ~hereby the Board appointed the Trustee Robert Friedland to the office of Mayor, is null and void; and it is further
ORDERED, ADJUDGED AND DECREED that the office of the Trustee of the Village of Monticello is vacant; and it is further
ORDERED, ADJUDGED AND DECREED that the actions of the Board taken on March 1st, l993, whereby the Board appointed the Trustee David Rosenberg to the position of Deputy Mayor is null and void; and it is further
ORDERED, ADJUDGED AND DECREED that the position of the Deputy
Mayor of the Village of Monticello is vacant; and it is further
ORDERED, ADJUDGED AND DECREED that the actions of the Board taken on March 1st, 1993, whereby the Board appointed the Tax Assessor Gladys Walker to the office of Trustee is null and void; and it is further
ORDERED, ADJUDGED AND DECREED that the position of Tax Assessor is vacant, and it is further
ORDERED, ADJUDGED AND DECREED that Mark Schulman, John Diuguid, Robert Friedland, David Rosenberg and Gladys Walker have violated Sec. 804 of the General Municipal Law and the Village of Monticello Code of Ethics and this matter is referred to the office of the District Attorney for investigation; and it is further
ORDERED, ADJUDGED AND DECREED that the Committee on Professional Standards, Third Department, conduct an investigation of Mark Schulman, Esq., and John Diuguid, Esq., and it is further
ORDERED, ADJUDGED AND DECREED that Respondents Mark Schulman, John Diugiud, Robert Friedland, David Rosenberg and Gladys Walker are hereby restrained and enjoined from conducting their presently assumed and prior offices [and David Rosenberg is enjoined from serving in the position of Deputy Mayor;]
ORDERED, ADJUDGED AND DECREED declaring the actions taken by the Board and the Village Manager at the Reorganizational Meeting held on April 7, 1993, whereby the Board re-appointed the Mayor; whereby the Mayor appointed the Trustee; whereby the Village Manager re-appointed the Village Justice; whereby the Mayor appointed the Deputy Mayor, null and void; and it is further
ORDERED, ADJUDGED AND DECREED that the process for calling a special election be implemented forthwith; and it is further
ORDERED, ADJUDGED AND DECREED that the Board of Trustees of the Village of Monticello, the Mayor, its servants, agents and assigns, from the date of this Order and continuing herefrom shall be in compliance with the OML as set forth on this date and as amended, and it is further
ORDERED, ADJUDGED AND DECREED that the Respondents are directed to pay to the taxpayers of the Village of Monticello that amount of monies received as salaries from March 1, 1993, up to and including the last date of compensation by the Village; and it is further [Omit VGB, JSC. Not asked for in petition]
ORDERED, ADJUDGED AND DECREED that the Petitioners are awarded the costs for this proceeding and that the ~espondents are directed to pay for the costs and disbursements of this proceeding; and it is further
ORDERED, ADJUDGED AND DECREED that the Petitioners are awarded attorneys fees and that the 8espondents are directed to pay the attorneys fees of this proceeding [after a hearing on affidavits].
/S/ Vincent G. Bradley, J.S.C.
STATE OF NEW YORK
Sullivan County Clerk's Office} ss.:
ENDORSED, FILED.
January 19, 1994
/S/ George L Cooke
Clerk
I, George L. Cooke, County Clerk in and for said Couny: do hereby certify that I have compared she foregoing copy of an Order Index #1198-93 with the original now remaining on file in this office and that the same is a correct transcript therefrom and of the whole of said original.
In Testimony whereof, I have hereunto set my hand and affixed the seal of said County this 25th Day of October A.D. 1995.
/S/ George L. Cook, Clerk
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