Labor & Employment Law

Removal of public officers

By Harvey Randall, Esq.

Removal of public officers
Matter of Hart v Trumansburg Bd. of Trustees, 41 A.D.3d 1025, Appellate Division, Third Department

This case involved an effort to remove officials from their public offices with the Village of Trumansburg pursuant to Public Officers Law Section 36. Public Officers Law Section 36 provides:

§36. Removal of town, village, improvement district or fire district officer by court. Any town, village, improvement district or fire district officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.

Geoffrey J. Hart, a resident of the Village of Trumansburg in Tompkins County, filed a petition seeking a court order removing Trumansburg Village Trustees John Levine, John Hrubos and Rose Hilbert (the trustees) from their respective offices.

Hart alleged that the trustees ?conspired to withhold information from the public in violation of the public trust, and engaged in a pattern of gross dereliction of duty.?

The Appellate Division commenced its review by noting that:

Removal from office under Public Officers Law Section 36 is a drastic remedy reserved for malicious and corrupt acts as compared to minor neglect of duties, administrative oversights and violations of law.

According to the decision, the misconduct alleged by [Hart] essentially consists of the Board returning to open session following executive session and failing to properly notify the public of the changed date of the October 2006 meeting.

Citing Matter of McCarthy v Sanford, 24 AD3d 1168, the Appellate Division said that ?even assuming that trustees? conduct constituted a violation of the Open Meetings Law, these allegations do not rise to the level of ?unscrupulous conduct or gross dereliction of duty . . . [or] connote a pattern of misconduct and abuse of authority? justifying removal.

The court then granted Trumansburg?s motion to dismiss Hart?s petition.

Full post as published by New York Public Personnel Law on March 27, 2008 (boomark / email).