        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

933
OP 15-00258
PRESENT: SCUDDER, P.J., PERADOTTO, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF PAUL BECALLO, PETITIONER,

                    V                             MEMORANDUM AND ORDER

JESSICA ZAMBRANO, SUPERVISOR, TOWN OF CICERO,
ONONDAGA COUNTY, RESPONDENT.


PAUL BECALLO, PETITIONER PRO SE.

LISA DIPOALA HABER, SYRACUSE, FOR RESPONDENT.


     Proceeding pursuant to Public Officers Law § 36 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department on February 10, 2015) for the removal of respondent from
the public office of Supervisor for the Town of Cicero.

     It is hereby ORDERED that said petition is unanimously dismissed
without costs.

     Memorandum: Petitioner, a citizen in the Town of Cicero (Town),
commenced this original proceeding pursuant to Public Officers Law §
36 seeking the removal of respondent as the Town Supervisor. In her
answer and responding affidavit, respondent admitted many of the
factual allegations of the petition, particularly that she had a
romantic relationship with an employee of the engineering firm
(employee) that was hired by the Town and that she signed the contract
with the engineering firm and approved invoices for work completed by
the employee; that she purchased a one-half interest in the employee’s
residence and that he held a mortgage from her; and that she used
campaign funds to pay for a bulk mailing of a Town newsletter to
senior citizens. She denied, however, that the above acts created a
conflict of interest or constituted wrongdoing and sought dismissal of
the petition. In addition, respondent submitted documentary evidence
refuting the remaining allegation that she altered the date on a
shared services agreement with another Town. We conclude that the
petition must be dismissed.

     Respondent established that she began a romantic relationship
with the employee in the fall of 2011 while she was a Town
councilperson and that she sought an opinion from the Town Attorney in
February 2012 whether there was a conflict of interest as a result of
that relationship. The Town Attorney advised her in a written opinion
that there was no conflict of interest. The Town Attorney reiterated
that opinion at a Town Board meeting in April 2014, when respondent
                                 -2-                           933
                                                         OP 15-00258

was Town Supervisor. General Municipal Law § 801 provides that “no
municipal officer . . . shall have an interest in any contract with
the municipality of which [she] is an officer . . . when such officer
. . . has the power or duty to . . . approve the contract . . . or
approve payment thereunder.” “Interest” is defined in section 800
(3), in relevant part, as “a direct or indirect pecuniary or material
benefit accruing to a municipal officer . . . as a result of a
contract with the municipality which such officer . . . serves . . .
[A] municipal officer . . . shall be deemed to have an interest in the
contract of . . . [her] spouse, minor children and dependent.” Those
provisions do not apply here.

     With respect to the financial arrangement between respondent and
the employee regarding her purchase of a one-half interest in his
residence, we conclude that it cannot “reasonably be inferred that the
[financial arrangement] was intended to influence [respondent], or
could reasonably be expected to influence [her], in the performance of
[her] official duties or was intended as a reward for any official
action on [her] part” (General Municipal Law § 805-a [1]). Thus, we
conclude that petitioner has failed to establish a conflict of
interest with respect to respondent’s personal relationship with the
employee (see Matter of Hedman v Town Bd. of Town of Howard, 56 AD3d
1287, 1288). With respect to petitioner’s allegation concerning
campaign funds, even assuming, arguendo, that the use of those funds
to pay for a bulk mailing of a Town newsletter to senior citizens was
improper, such impropriety does “not remotely rise to the level
required for removal pursuant to Public Officers Law § 36” (Matter of
Salvador v Ross, 61 AD3d 1163, 1164). Finally, petitioner has failed
to come forward with evidence raising an issue of fact with respect to
the allegation concerning the shared services agreement (see Matter of
Reszka v Collins, 109 AD3d 1134, 1134-1135)

     “Public Officers Law § 36 was enacted to enable a town . . . to
rid itself of an unfaithful or dishonest public official” (Reszka, 109
AD3d at 1134 [internal quotation marks omitted]), and petitioner has
failed to establish that respondent is either unfaithful or dishonest
in the performance of her duties as Town Supervisor. “[T]he petition
does not set forth a single act of unscrupulous conduct or intentional
wrongdoing, let alone evidence of any gross dereliction of duties or a
pattern of misconduct” (Salvador, 61 AD3d at 1164-1165). We therefore
dismiss the petition (see Hedman, 56 AD3d at 1287-1288).




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
