                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     518276B
________________________________

In the Matter of MICHAEL GRECO
   et al.,
                    Petitioners,
      v
                                            MEMORANDUM AND JUDGMENT
GORDON C. JENKINS, as Mayor
   and Village Manager of the
   Village of Monticello,
                    Respondent.
________________________________


Calendar Date:   February 18, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      Orseck Law Office, PLLC, Liberty (Kirk O. Orseck of
counsel), for petitioners.

      Sussman & Watkins, Goshen (Michael H. Sussman of counsel),
for respondent.

                             __________


Garry, J.

      Proceeding initiated in this Court pursuant to Public
Officers Law § 36 to remove respondent from the offices of Mayor
and Village Manager of the Village of Monticello.

      Petitioners, who are residents of the Village of Monticello
in Sullivan County, commenced this proceeding in this Court
seeking to remove respondent from the offices of Mayor and
Village Manager pursuant to Public Officers Law § 36. Respondent
moved to dismiss the petition. This Court denied the motion and
referred the matter to a Referee to conduct a hearing and report
his findings and recommendations (118 AD3d 1248 [2014]). During
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the hearing, petitioners offered testimony from a Village
Trustee, an Assistant District Attorney, two Village police
officers and a Village employee, as well as submitting affidavits
and other evidence. Respondent was present and represented by
counsel during the hearing, but offered no testimony or evidence
on his own behalf. Following the hearing, the Referee issued a
report recommending the removal of respondent from office.
Petitioners move to confirm the Referee's report, and respondent
cross-moves to disconfirm the report and dismiss the petition.

      Public Officers Law § 36 provides a means by which a public
officer for a town or village may be removed for "unscrupulous
conduct or gross dereliction of duty or conduct that . . .
connotes a pattern of misconduct and abuse of authority" (Matter
of Price v Evers, 45 AD3d 1075, 1076 [2007] [internal quotation
marks, brackets and citations omitted]). To warrant removal, an
official's misconduct must amount to more than minor violations
and must consist of "self-dealing, corrupt activities, conflict
of interest, moral turpitude, intentional wrongdoing or violation
of a public trust" (Matter of Chandler v Weir, 30 AD3d 795, 796
[2006] [internal quotation marks and citations omitted]; accord
Matter of Salvador v Ross, 61 AD3d 1163, 1164 [2009]). When this
matter was previously before this Court, we found that certain
allegations against respondent, if proven, would demonstrate a
sufficiently serious pattern of abuse of authority and
misbehavior to warrant his removal (118 AD3d at 1250). In a
detailed report, the Referee determined that respondent had
committed a number of acts of misconduct that were sufficient to
warrant his removal. Although the Referee's findings are not
binding upon this Court, they serve "to inform [our] conscience"
(Matter of Gehr v Board of Educ. of City of Yonkers, 304 NY 436,
440 [1952] [internal quotation marks and citation omitted];
accord Matter of DeFalco v Doetsch, 208 AD2d 1047, 1050 [1994])
and, upon our independent review, we find that removal is
warranted.

      The first of the allegations referenced in this Court's
earlier decision was a claim that respondent had refused to
provide funding for the Village police department in an effort to
influence the disposition of certain criminal charges against him
(118 AD3d at 1250). During the hearing, an affidavit from
                              -3-                518276B

Village Trustee Carmen Rue was entered into evidence in which Rue
averred that she witnessed respondent telling the Village Police
Chief that "the Village Police would not receive desperately
needed funding until [certain] criminal charges levied against
[respondent] . . . were 'resolved.'" Respondent did not present
any testimony or evidence of any nature to rebut this claim. The
Referee found that he had made the remark, and that he did so in
an effort to link the treatment of his criminal charges with
Village financial matters. Such a credibility determination by a
referee is "entitled to great weight" (Slater v Links at N.
Hills, 262 AD2d 299, 299 [1999]). It bears noting that the
evidence did not establish that respondent actually withheld
funds from the police department. Although the record reveals
that the police department did lack funding for certain necessary
services – including a functioning heating system in the police
station – the testimony indicated that such funding decisions
were typically made by the Village Board of Trustees as a whole
rather than by respondent alone, and that the funds may have been
unavailable for budgetary rather than coercive reasons.
Nonetheless, even if the threat was not ultimately carried out,
we find that respondent's attempt to influence the disposition of
criminal charges against him by threatening to use his public
office to withhold municipal funding constituted a clear abuse of
authority.

      Petitioners next allege that respondent sought "to use his
position as Mayor and Village Manager to obtain 'special
treatment' from the Village's police department with respect to
his various criminal charges and has repeatedly threatened
various local law enforcement officials with termination or
disciplinary action for pursuing such charges against him" (118
AD3d at 1250). A November 2013 surveillance video submitted with
the petition confirms these claims in part, revealing that, while
respondent was detained overnight in the Village police station
following his arrest on charges of driving while intoxicated, he
went on a lengthy tirade in which, among other things, he
reminded police officers that they worked for him, threatened
that he would "do something tomorrow" about their treatment of
him, repeatedly warned that they would be suspended or would
suffer other negative repercussions for detaining him, directed
dozens of obscene remarks and racist insults at the officers, and
                              -4-                518276B

repeatedly attempted to persuade one of the officers to place his
personal loyalties above his job duties in respondent's favor.
Two police officers testified, among other things, that, during
his detention, respondent told them that they were insubordinate
and that they would no longer receive overtime pay, referenced
ongoing contract negotiations related to the officers' salary and
job conditions in a manner that the officers perceived as
intimidating, threatened "to hold a special [V]illage [B]oard
meeting right then and there" and made numerous statements
implying that the officers would suffer negative consequences for
his arrest such as "You guys will pay for this," "I hired you,"
and "What goes around comes around."

      Respondent does not deny that he made the remarks in
question. Instead, he argues that his arrest was a pretext
resulting from discord with the police department resulting from
contract negotiations and other political issues, and that his
remarks resulted from anger and frustration arising from the
allegedly improper circumstances in which he was detained.
During respondent's overnight detention, he was handcuffed to a
wall for hours in an uncomfortable position with little room for
movement; during part of the video, he can be seen attempting to
sleep on the floor with one arm over his head, still handcuffed
to the wall.1 The officers testified, however, that respondent
was handcuffed because of his angry outbursts and refusal to
cooperate with the police, and that he could not be held in a
cell because of the police station's lack of heat. The video
does not support respondent's further contention that the police
disregarded his repeated requests for an attorney. Instead, it
reveals that officers asked respondent for the telephone number
of the attorney he wished to contact and, when respondent stated
that he did not have this information, called respondent's
paramour – who was also a Village Trustee – to ask for her
assistance in obtaining representation for him. An officer can
be heard on the video telling respondent that the paramour then
advised police that an attorney had been retained on respondent's


    1
        Respondent's detention was briefly interrupted when
officers transported him to a hospital for a medical examination
after he complained of heart palpitations.
                              -5-                518276B

behalf.

      Considering the length of his detention in highly
uncomfortable circumstances, some degree of anger and frustration
on respondent's part is understandable; nevertheless, the video
reveals that many of his objectionable remarks were made shortly
after his arrival at the police station. Respondent offered no
evidence to support his claim that his arrest resulted from
partisan discord rather than from his own actions; on the
contrary, it appears that he later pleaded guilty to a related
charge. The Referee found that respondent linked his remarks
about the union contract negotiations to his arrest in an effort
to secure his release and that he was attempting to "trade off"
the negotiations for favorable treatment. Respondent offered no
alternate explanation for these remarks or for his numerous
comments threatening the officers with negative consequences if
he was not released. We agree that the unrebutted evidence
establishes that respondent attempted to use his public office to
intimidate and coerce the officers into giving him special
treatment, and that such conduct constitutes self-dealing and an
abuse of authority.

      Finally, this Court previously noted that respondent had
allegedly awarded a "suspiciously low" no-bid contract to a local
firm to demolish an asbestos-laden building owned by the Village
and dump the resulting debris, and that these actions had
allegedly exposed the Village to substantial fines and legal fees
(id. at 1250 [internal quotation marks omitted]). The testimony
at the hearing supported these claims. Rue – who was, as
previously noted, a Village Trustee – testified that the building
in question, a former courthouse, was demolished in October 2013
and the debris was illegally dumped in a nearby town. Rue stated
that, although she was a Trustee, she did not know that the
demolition was scheduled to take place until she received a
telephone call while it was going on. She confirmed that
decisions of this nature would normally be made by the Board, but
stated that the decision to hire this firm to demolish the
building was never brought before the Board, that she never saw a
bid for the demolition, and that the Board did not vote on it
until several months after it took place.
                              -6-                518276B

      As Rue explained, the Board and respondent had previously
discussed the topic of demolishing the building and had been
advised by an engineer that the demolition would be extremely
expensive because the building contained asbestos.2 Notably, the
firm that carried out the demolition was paid only $5,000. Rue
testified that respondent made the decision to demolish the
building and, when Rue later asked him why he had done so, he did
not deny his involvement and instead falsely insisted that the
Board had voted to approve the action.3 Rue's testimony that
respondent acknowledged his role in making this decision was
unrebutted, and no evidence of any nature was produced to
demonstrate that the action was approved by the Board or that
respondent had the authority to contract for the transaction.
According to Rue, the Village incurred costs of approximately
$90,000 to clean up the demolition and dumping sites, as well as
legal fees and other expenses. She further asserted that the
firm that conducted the demolition had filed a notice of claim
against the Village, contending that it was not advised that
there was asbestos in the building before it undertook the job.
In the absence of any evidence or testimony to rebut these
allegations, the credible proof establishes that respondent
improperly contracted for the demolition without Board approval
and, further, despite knowing that the building contained
asbestos, directed or permitted the illegal disposition of the
debris. These actions exposed the Village to substantial costs
and liabilities, and respondent thus violated a public trust.

      As we previously found, taken together, these actions "rise
to the level of 'unscrupulous conduct or gross dereliction of


    2
        Rue testified that the engineer told the Board that it
would cost $2,500,000 "to demolish the building and fix the main
building first," but did not clarify what portion of this figure
was related to the demolition.
    3
        On cross-examination, Rue acknowledged that other
unidentified individuals could have participated with respondent
in making the demolition decision, but she did not waver from her
claim that respondent was, at minimum, involved in the decision
and that no official Board approval was obtained.
                                -7-                  518276B

duty or conduct that connotes a pattern of misconduct and abuse
of authority'" (id., quoting Matter of Hayes v Ansel-McCabe, 83
AD3d 1180, 1181 [2011]).4 Accordingly, we confirm the Referee's
report and conclude that respondent's conduct warrants his
removal from office pursuant to Public Officers Law § 36 (see
Matter of West v Grant, 243 AD2d 815, 815-817 [1997]; Matter of
DeFalco v Doetsch, 208 AD2d at 1048-1049; Matter of Williams v
Travis, 194 AD2d 969, 969-970 [1993]; Matter of Smith v Perlman,
105 AD2d 878, 878-879 [1984]). Petitioners' assertions related
to Public Officers Law § 30 (1) (e) are rendered academic by this
determination.

        Peters, P.J., Lahtinen and Lynch, JJ., concur.



      ADJUDGED that the petition and motion to confirm the
Referee's report are granted, without costs, cross motion to
disconfirm and dismiss the petition denied, and respondent is
hereby removed from the public offices of Mayor and Village
Manager of the Village of Monticello.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court



    4
        We limit this determination to those matters that were
addressed in our prior decision, although petitioners alleged
various additional acts of misconduct, arguing that these also
justified respondent's removal, and the Referee made findings
pertaining to some of these further allegations. This Court's
determination "should not be construed as either accepting or
rejecting those portions of the [Referee's] report that are not
expressly adopted herein" (Matter of DeFalco v Doetsch, 208 AD2d
at 1050).
