Labor & Employment Law

Removal of an officer of a political subdivision of the State for misconduct, maladministration, malfeasance or malversation in office

Gerald S. Hedman and a number of others initiated an Article 78 action in an effort to have the court remove Town of Howard Board Member William O. Hatch from office pursuant to Public Officers Law §36.

§36 of the Public Officers Law provides for the removal of an officer of a town, a village, an improvement district or a fire district, [other than a justice of the peace], found guilty of misconduct, maladministration [performing official duties corruptly or inefficiently], malfeasance [performing official duties inadequately or poorly], or malversation [misuse of public or other funds] while holding public office.

Hedman alleged that Hatch attempted to conceal his relationship with Everpower Global Corporation, an alternate energy company, and ignored an alleged conflict of interest that arose when he voted to approve a wind energy facility proposed by Everpower that included a wind turbine on Hatch's property

The Appellate Division, citing Jones v Filkins, 238 AD2d 954, said that the removal of an official from office pursuant to Public Officers Law §36 "generally will not be granted absent allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust[,]? while allegations of ?minor neglect of duties, administrative oversights, or violations of law do not, in general, warrant removal."

The court decided that Hedman failed to establish that Hatch had an actual conflict of interest that would warrant his removal as a member of the Town Board. It noted that Hedman had submitted evidence in support of the alleged conflict of interest that consisted solely of Everpower's proposal for a wind energy facility in which Hatch was identified as a proposed participating landowner on whose property a wind turbine would be located.

In contrast, the Appellate Division said that Hatch established that ?he had not entered into any agreement with Everpower with respect to a wind turbine at the time he voted on the proposal? in favor of Everpower's plan for a wind energy facility. In addition, the court concluded that Hedman?s allegation that Hatch intentionally concealed his relationship with Everpower was based on pure speculation and thus was not entitled to any evidentiary weight.

On one final point, the court viewed Hatch?s alleged impropriety of failing to make a public disclosure of the potential conflict of interest as insufficient to warrant his removal as a Town Board member.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09229.htm

Full post as published by New York Public Personnel Law on December 02, 2008 (boomark / email).