Opinion
2007-1038.
Decided January 29, 2008.
Law Office of Carl J. Madonna Mark V. Cowen, Plattsburgh (Mark V. Cowen of counsel), for Petitioner.
O'Connell Aronowitz, P.C., Plattsburgh (Donald W. Biggs of counsel), for Respondent Town of Peru Town Board.
Niles, Piller Bracy, PLLC, Plattsburgh (Evan F. Bracy of counsel), for Respondents Roger Bonner, Cortland Forrence, Peter Glushko and Thomas Powers.
The Court is asked to resolve this CPLR article 78 proceeding challenging a decision of the Respondent Town of Peru Town Board, as well as the motion by the Responents Roger Bonner, Cortland Forrence, Peter Glushko and Thomas Powers (hereinafter individual respondents) to dismiss the petition. The facts of the case are relatively straightforward and arise out of political discord in the Town of Peru, Clinton County. The individual respondents were the town councilmen in 2006. The town supervisor, Donald Covel, commenced a defamation action against the individual respondents as the result of certain statements made by them. In particular, the individual respondents made allegedly defamatory statements at an April 24, 2006 town board meeting, as well as subsequent statements made by them as private citizens at an April 28, 2006 news conference and in a May 1, 2006 letter to the Clinton County District Attorney.
At a May 8, 2006 town board meeting, the town board unanimously passed a resolution conferring the benefits of Public Officers Law § 18, the statute allowing a municipality to provide a defense for its officials in any legal action arising out of their public duties, upon the officers and employees of the Town of Peru. Covel's defamation action was commenced on February 26, 2007. Thereafter, at an April 16, 2007 town board meeting, the issue of providing the individual respondents a defense pursuant to that resolution was raised. The town attorney indicated at that meeting that he had been requested to review the claims in the defamation action and had concluded that most of the actions "seemed to have occurred when [the individual respondents] were acting in their scope of employment as town officers or employees." As such, the town attorney suggested that the individual respondents were entitled to a defense. The issue of whether the town board, which at that point included three of the four individual respondents, had a conflict of interest was raised, but the town attorney indicated that no other board could vote on the issue. The town board proceeded to pass a resolution conferring a defense upon the individual respondents, with Covel being the lone vote in opposition.
This proceeding was commenced on August 14, 2007. The first cause of action argues that the town board's decision to provide a defense to the individual respondents was illegal, as Covel's defamation action dealt with acts that occurred prior to the May 8, 2006 resolution. The second cause of action alleges that, as a majority of the town board on April 16, 2007 were comprised of the individual respondents, the town board had a conflict of interest and should not have conferred a defense on the individual respondents. The third cause of action alleges that the town board lacked evidence from which it could conclude that the individual respondents' allegedly defamatory statements were made in the course of their public duties. The fourth cause of action asserts that the individual respondents failed to properly request a defense as required by the Public Officers Law. The town board thereafter moved to dismiss the petition for the Petitioner's failure to join necessary parties, namely the individual respondents. By decision and order dated October 29, 2007, the Court ordered that the individual respondents be joined, notwithstanding the expiration of the statute of limitations as against them. As expected, the individual respondents subsequently moved to dismiss the petition against them because, among other reasons, the claims against them were time-barred. No opposition has been provided to that motion.
For reasons that are not clear, the individual respondents were not formally named as respondents in the supplemental petition.
The town board served an answer opposing the Petitioner's claims on the merits, but also makes two other arguments for dismissal. The first is that the petition should be dismissed if the individual respondents' motion succeeds, as such would mean that necessary parties would be absent in this proceeding. The second is that the April 16, 2007 resolution represents a legislative act for which a CPLR article 78 challenge is improper. The Petitioner submits a reply memorandum of law in which he suggests, among other things, that the proceeding be converted to a declaratory judgment action if he has used the wrong procedural vehicle to challenge the town board's action.
Initially, the individual respondents' motion is granted. The Court previously found that the statute of limitations had run in its October 29, 2007 decision and such is the law of the case. Given that and the lack of opposition, the claims against the individual respondents are dismissed.
The absence of the individual respondents raises a separate issue. The individual respondents are clearly necessary parties and that finding is the law of the case given the Court's October 29, 2007 decision. Given that the claims against them have now been dismissed, does such require dismissal of the petition pursuant to CPLR 3211 (a) (10)? CPLR 1001 (b) directs the Court to order a necessary party joined unless there is a jurisdictional problem. As discussed in the Court's October 29, 2007 decision, there was no jurisdictional problem here and the Court was obligated to direct joinder. As joinder occurred, the Court does not believe that dismissal of the action for nonjoinder is appropriate, as the absence of the individual respondents now is entirely of their own doing. The joinder rules were enacted to address the "important policy interest in guaranteeing that absent parties at risk of prejudice will not be embarrassed by judgments purporting to bind their rights or interests where they have had no opportunity to be heard'" ( Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Standards Apps. , 5 NY3d 452 , 458, quoting First Natl. Bank of Amsterdam v Shuler, 153 NY 163, 170). In this case, those policies have been satisfied, as the individual respondents were joined and have been given the opportunity to defend their rights and interests. They instead made the perfectly valid decision to raise a statute of limitations defense and leave the action. This is a far cry from the situation contemplated by CPLR 1001, where the necessary parties have never had an opportunity to be heard and could be significantly prejudiced by any judgment. As the individual respondents were joined, the Court can perceive no basis for dismissal based upon CPLR 3211 (a) (10), notwithstanding the subsequent dismissal of the claims against them.
The town board also argues that the April 16, 2007 resolution was a legislative act. "An article 78 proceeding, it is settled, may not be utilized to review legislative action" ( Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400, 407). It is equally settled, however, that "[t]he circumstance that the action sought to be reviewed is that of a legislative body . . . does not stamp that action as legislative' for purposes of determining whether challenges to the constitutionality of its action may be raised by means of an article 78 proceeding" ( Press v County of Monroe, 50 NY2d 695, 701-702). If a legislative body's action is more properly characterized as an administrative action, it is reviewable in a CPLR article 78 proceeding ( see Solnick v Whalen, 49 NY2d 224, 231-232). An action is an administrative one if it can be "characterized by its individualized application, limited duration, and informal adoption, e.g., resolution by the governing body" ( International Paper Corp. v Sterling Forest Pollution Control Corp., 105 AD2d 278, 282). The town board's action here may comfortably be characterized as administrative it applies only to the individual respondents, endures only for the period that the defamation action against them continues, and was informally adopted by a resolution as opposed to a local law. The Court concludes that the town board's action was administrative and may properly be challenged in this CPLR article 78 proceeding.
The petition fails on the merits, however. The first cause of action alleges that a defense cannot be provided, as the acts complained of in Covel's defamation action occurred prior to the May 8, 2006 resolution extending the provisions of Public Officers Law § 18 to town officials. Initially, the May 8, 2006 resolution does nothing more than extend the provisions of the statute to town officials and employees, and the Court will rely on decisions interpreting the statute ( see Matter of Dreyer v City of Saratoga Springs , 43 AD3d 586 , 587). All the statute requires is a showing that the employee seeking a defense complied with the notice requirements of the statute and that the subject of the action arose "out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties" (Public Officers Law § 18 [a]). There is no requirement that the acts occur after the appropriate resolution has been adopted by the public entity. Instead, Public Officers Law § 18 (5) requires that the employee delivers to the chief legal officer of the town a copy of the initiatory papers "within ten days after he is served with such document," implying that the provisions of the statute can be invoked no earlier than the time an action is actually commenced and papers served. This makes sense, as the statute deals with a defense, and there will be no defense if no action has been commenced. In short, the statutory language suggests that the statute applies to actions commenced after the statute's protections are conferred, without regard to the date the complained of acts occurred. As commencement occurred here after May 8, 2006, the first cause of action is dismissed.
The town board's argument that it could have provided a defense for the individual respondents pursuant to provisions of the Town Law cannot be considered, as the Court is limited to reviewing those justifications actually relied upon ( see Matter of Parkmed Assoc. v New York State Tax Commn., 60 NY2d 935, 936 [1983]).
The second cause of action alleges that the April 16, 2007 resolution must be set aside, as a majority of the town board was interested in the outcome. Although members of a deliberative body are ordinarily required to recuse themselves from cases in which they have an interest, "[t]he Rule of Necessity provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard" ( Matter of General Motors Corp. Delco Prods. Div. v Rosa, 82 NY2d 183, 188). "Thus, where all members of the adjudicative body are disqualified and no other body exists to which the appeal might be referred for disposition, the Rule of Necessity ensures that neither the parties nor the Legislature will be left without the remedy provided by law" ( id.). Here, none of the parties dispute that the town board was the only body that could consider an application under Public Officers Law § 18. Three of the five members of the town board, Cortland Forrence, Thomas Powers and Peter Glushko, were recipients of a defense pursuant to that resolution and would have ordinarily been forced to recuse themselves. The absence of three members would have left the town board without a quorum, making it incapable of rendering any decision ( see Town Law § 63). Public Officers Law § 18 itself allows for application of the rule. The right to a defense conferred by Public Officers Law § 18 is a statutory creature only, with no apparent constitutional or common law backing ( see Sharkey v Thurston, 268 NY 123, 126-127). Accordingly, the Court is left with the statute, and if a statute requires a decision to be made by a specified official "and no other officer can hold the hearing, then the language of the statute may not be disregarded, nor the legislative intent defeated by holding that the officer is disqualified" ( id. at 128). The Rule of Necessity applies and the second cause of action is dismissed.
The Court notes that at least one case states that, "if the [town attorney's] investigation demonstrates that the wrongful act or omission actually occurred within the scope of the public employee's duties, the public entity must provide a defense," implying that no action by the governing body of the municipality is required ( Matter of Polak v City of Schenectady, 181 AD2d 233, 236 [1992]). Nothing in Public Officers Law § 18 expressly requires the governing body of a municipality to act to confer a defense in a specific case. Regardless, given the lack of dispute on the issue, the Court will assume with the parties that the town board must act in order to provide a defense.
The fourth cause of action alleges that the individual respondents failed to give the notice required by Public Officers Law § 18 (5). Initially, there is no proof that the required notice was not given the April 16, 2007 town board meeting minutes indicate that the individual respondents "requested" that the town attorney determine if the town should provide a defense and the resolution itself states that the individual respondents gave the required notice. Nor is the Court convinced that the Petitioner is entitled to raise the issue, as the notice requirement is intended to protect the town, which raised no objection to the notice provided ( see Matter of Polak v City of Schenectady, 181 AD2d 233, 235). Lastly, even if the notice provided was deficient, "the statute's notice requirements are not to be construed as a condition precedent" to action by the town ( Matter of Hunt v Hamilton County, 235 AD2d 758, 759). The fourth cause of action is dismissed.
The remaining claim goes to the merits of the town board's decision. In order for a defense to be provided, it must be shown that the defamation action arose "out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties" (Public Officers Law § 18 [a]). "If the allegations of the complaint suggest that any of the conduct asserted falls reasonably within the scope of employment, the duty to provide a defense is triggered since the duty to defend is extremely broad and exists regardless of how baseless the complaint may be" ( Matter of Dreyer v City of Saratoga Springs, 43 AD3d at 588 [emphasis added]). Such is a factual determination and can be set aside only if it lacks a factual basis and is arbitrary and capricious ( see Matter of Polak v City of Schenectady, 181 AD2d at 236). Here, the complaint in the defamation action alleges that a good portion of the allegedly defamatory statements were made in an unofficial context. Having said that, the complaint also alleges that Forrence made several defamatory statements at an April 24, 2006 town board meeting, and that those statements were "republished and affirmed" by the other individual respondents when they signed the minutes of that meeting. Those statements are clearly related to town business, such as Forrence's accusation that Covel had made statements at the meeting that were "not factual" and that the town had incurred legal bills because of Covel's conduct as town supervisor. It was not irrational to conclude that Forrence's statements about town business made at a town board meeting reasonably fall within the scope of his duties. The complaint further alleges that the other individual respondents published those statements themselves. Taking the complaint at face value, the decision that at least some of the complained of conduct fell within the scope of the individual respondents' official duties was not an irrational one. The third cause of action is dismissed.
Ordered and Adjudged that the Respondents Roger Bonner, Cortland Forrence, Peter Glushko and Thomas Powers' motion to dismiss the petition is granted; and it is further Ordered and Adjudged that the petition is dismissed. Any relief requested which is not specifically granted herein is denied, and no motion costs are awarded to any party.
The original of this Decision and Judgment, together with the papers supplied, are returned to the Respondent Town of Peru Town Board's attorneys for filing and service with notice of entry. Those papers consist of the following: notice of petition dated August 14, 2007; petition dated August 14, 2007, with exhibits; supplemental summons/petition with notice dated November 30, 2007; notice of motion dated November 29, 2007; affirmation of Matthew E. Douthat dated November 26, 2007; affirmation of Evan F. Bracy dated November 26, 2007, with exhibits; answer dated January 28, 2007 [sic]; affidavit of Donald W. Biggs, sworn to December 28, 2007, with exhibit.