INDEX NO. 035912/2017 ROCKLAND. COUNTY CLERK 12/05/2017. 12:37. NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/05/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND In the Matter of the Application of IA Part MELISSA REIMER, VERIFIED PETITION Index No. Petitioner, C.P.L.R. ARTICLE 78 PROCEEDING for an Order pursuant to Civil Practice Law IN THE NATURE OF A WRIT OF and Rules Article 78 MANDAMUS, COMPELLING THE TOWN OF RAMAPO, TO PERFORM -against? ITS LEGALLY MANDATED OBLIGATION, TO ACT ON THE THE TOWN OF RAMAPO, YEARS OLD RECOMMENDATIONS OF TWO HEARING OFFICERS IN Respondents. DISCIPLINARY PROCEEDINGS IN WHICH THE PETITIONER WAS THE SUBJECT Venue is appropriate in Rockland County pursuant to 503(a) MELISSA REIMER, by her attorney, Fred Lichtmacher of The Law Of?ce of Fred Lichtmacher, PC, alleges the following as and for her Petition seeking the following relief; That the Court issue a Writ of Mandamus compelling the Respondent, Town of Ramapo, to perform its legally mandated obligation, to act on the years old recommendations of two hearing of?cers in separate disciplinary proceedings in which the Petitioner was the subject. The ?rst of which was the June 6, 2013 Decisions and Recommendations of Attorney/Hearing Of?cer William Sherwood which has not been adopted or rejected by the Town Board of Ramapo in well over four full years; and the second of which is the December 30, 2013 Decisions and Recommendations of Attorney/Hearing Of?cer Jonas Gelb which has not been 1 of 11 ROCKLAND COUNTY. CLERK 12/05/2017 12:37 INDEX NO-- 035912/2017 NYSCEF. DOC.. NO.. 1 RECEIVED. 12/05/2017 adopted or rejected by the Town Board of Ramapo for almost four full years. As the Town of Ramapo is legally obligated to either reject or adopt the recommendations of the Hearing Of?cers, Petitioner bring this proceeding to compel the Town to do so at this time. Relevant Factual Historv Beginning on December 16, 2002, Ms. Reimer was employed by the Town of Ramapo in the Finance Department, and although her title changed she was, in sum and substance, the Supervisor of Fiscal Services for the Ramapo Town Government throughout her employment. (Reimer Af?davit). Ramapo is and was a municipal corporate subdivision of the State of New York duly existing by reason of and pursuant to the laws of the State of New York. On March 21, 2013 there was a Ramapo Board resolution to commence disciplinary proceedings against Ms. Reimer in response to which Ramapo hired William Sherwood to be the Hearing Of?cer. (Reimer Af?davit) (Exhibit Ms. Reimer had seven charges levied against her which were as follows: 1 Employee entered police department of?cers and engaged in inappropriate and unprofessional behavior and language. 2 Employee attempted to coerce other employees to circumvent protocol and alter police department records. 3 Employee attempted to have other employees alter police records thereby obstructing governmental administration under the penal law. 4 Employee engaged in Of?cial Misconduct under the penal law by the acts described in charge one and two. 5 Employee? 3 acts amounted to ?harassing, intimidating, bullying and coercive? behavior in violation of the town?s workplace violence policy. 6 Employee ?Attempted to Falsify Business Records? a penal law violation, with her acts described in charges 1 and 2. 7 Employee was guilty of misconduct by refusing to cooperate and being -4- 2. of. 11 ROCKLAND COUNTY. CLERK 12/05/2017 12:37 INDEX 035912/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/05/2017 evasive when questioned by the Deputy Town Attorney?. The Petitioner was put on administrative leave on June 5, 2013. (Reimer Af?davit). The ?rst set of Disciplinary Hearings were conducted on May 17, 21, 23, 28 and June 20 2013. On June 28, 2013 Ms. Reimer was both suspended without pay and served with new charges brought against her which alleged the following: 1 Recording her interview after being informed she should not on January 7, 2013. 2 Recording her interview after being informed she should not on January 16, 2013. Acknowledging under oath she was not recording and still recording an interview on January 16, 2013. Perjury. Refusing to produce a copy of the recordings of her interviews. Refusing to accept a letter from Ramapo and not surrendering her keys. Attempting to gain access to her of?ce after she was barred. Failing to appear for an investigative interview. (Reimer Af?davit) (Exhibit Some of these charges were false and some of them, while factually correct, stated behavior which violated no rules pursuant to the laws of the State of New York or elsewhere. (Af?rmation of Attorney Fred Lichtmacher). Ms. Reimer?s suspension without pay continued for four weeks, after which her suspension was continued with pay, and is still in effect up through the present time. (Reimer Af?davit). On September 26, 2013 Ms. Reimer received Hearing Of?cer Sherwood?s decision on the ?rst set of disciplinary charges, dated September 6, 2013 and delivered to Ms. Reimer 20 days later, exonerating Ms. Reimer on all charges except charges 1 and 5, the charges related to alleged bullying 1 While all the charges were patently false, Ms. Reimer brings this Article 78 strictly for the limited purpose of compelling the Town of Ramapo to act. Procedurally, the issue of whether the ?ndings of the Hearing Of?cers were arbitrary, capricious and not supported by the evidence will not be ripe unless the Board rules to adopt the Recommendations of the Hearing of?cers. -5- 3. of. 11 ROCKLAND COUNTY. CLERK 12/05/2017 12:37 INDEX N0. 035912/2017 NYSCEF DOC.. NO. 1 RECEIVED NYSCEF: 12/05/2017 and unprofessional behavior by Petitioner allegedly in violation of the Town?s workplace violence policy. (Exhibit While as stated previously, the issue of whether the ?ndings are arbitrary, capricious and against the weight of the evidence are not ripe herein, nevertheless it is worth noting that the video tapes of the incident completely exonerate the Petitioner. On December 30, 2013 the Hearing Of?cer Ramapo retained to try the second set of false charges, Jonas Gelb, issued his Decisions and Recommendations to the Town Board ?nding against Ms. Reimer on charges and recommended she be terminated. (Exhibit Once again because the issue of whether these ?ndings are arbitrary, capricious and not supported by the evidence is not yet ripe, Petitioner will not Spend timerebutting the ?ndings, other than to say that Ms. Reimer, quite clearly committed absolutely no bad acts and the charges were manufactured for a purpose not being litigated herein. Today, over four years after these charges were ?rst brought, Ms. Reimer remains suspended with pay, she has not been compensated for her initial four week suspension without pay, and despite years having passed since the Recommendations were made by the two Hearing Of?cers, there has been no action taken by the Town Board. Ms. Reimer remains in limbo-neither able to go back to work, and not terminated. While the Petitioner has been able to secure some work, despite her continuous efforts, Ms. Reimer is unable to ?nd a permanent job, much less one comparable to the one she technically still has with the Town of Ramapo. (Reimer Af?davit). On September 8, 2017 Ms. Reimer sent a letter to the Town demanding she be reinstated. (Exhibit While some Board members in open meetings asked the Board to restore Ms. Reimer to Town Hall, as of today, the Town has not adopted a ?nal resolution either restoring her to her job, or acting on the recommendation of the two Hearing Of?cers. (Lichtmacher Af?rmation). -5- 4. Of. 11 ROCKLAND COUNTY. CLERK 12/05/2017 12:37 INDEX 035912/2017 NYSCEF DOC. RECEIVED Ms. Reimer was 45 years of age when the false charges were ?rst brought and she is now over 50. (Reimer Af?davit). Her ?termination? is hanging over her head and she is unable to obtain another full time position. Simply quitting her job would mean a massive loss of bene?ts and salary which at the current time she cannot replace. Ms. Reimer is left waiting for the other shoe to fall and time is against her. The Petitioner is greatly prejudiced by the delay of the Town Board to act and she needs resolution. (Reimer Af?davit). A ?nding by the Board against her would entitle her to challenge such a ?nding with a special proceeding pursuant to Article 78. (See CPLR Art. 7803 (3 A ?nding for her would of course allow her to return to work and give her the security of her- government position affording her the protection any government employee has to a property interest in her job and the right to due process in any attempt to remove her from her position. Argument This Court should issue a Writ of Mandamus compelling the Town of Ramapo to act and make a ?nal determination On the Hearing Of?cers? Recommendations. At the present time, Ms. Reimer is without a legal remedy, she remains in limbo, not terminated, with a possible termination hanging over her head for over four years. If the status quo remains, the Petitioner will continue to have an uncertain career and future. While Ms. Reimer has been paid for all but the ?rst four weeks she was suspended, to allow the ?ndings of the Hearing Of?cers to not be acted upon for several years, greatly prejudices the Petitioner in her attempts to ?nd stability in her career and emotionally as well. (Reimer Af?davit). Ms. Reimer faces the prospect of the growing dif?culties a person 50 years of age has in ?nding a job. Ms. Reimer brings this special proceeding for closure, preferably by the Town of Ramapo restoring her to her position, but in any event, giving her a chance at closure to this ongoing 0! -7- 5. of. 11 ROCKLAND COUNTY CLERK 12/05/2017. 12:37. INDEX NO-- 035912/2017 NYSCEF 1 RECEIVED ordeal. Ms. Reimer, as the Supervisor of Fiscal Services, is an employee whose employment is largely regulated by the Civil Service Law. The law governing disciplinary charges brought against civil servants in Ramapo is New York .Civil Service Law ?75 (3), which states as follows: Suspension pending determination of charges; penalties. Pending the hearing and determination of charges of incompetency or misconduct, the of?cer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days. If such of?cer or employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a ?ne not to exceed one hundred dollars to be deducted from the salary or wages of such of?cer or employee, suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal from the service; provided, however, that the time during which an of?cer or employee is suspended without pay may be considered as part of the penalty. If he is acquitted, he shall be restored to his position with full pay for the period of suspension less the amount of any unemployment insurance bene?ts he may have received during such period. If such of?cer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be ?led in the of?ce of the department or agency in which he has been employed, and a copy thereof shall be ?led with the civil service commission having jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the of?cer or employee affected, be furnished to him without charge. Subsection (4) states as follows: Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or con?dential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime. While Civil Service Law 75 (4) provides a statute of limitations within which time disciplinary proceedings must be brought that being 18 months, neither sections 3 nor 4 provide a guideline for when the recommendations of the Hearing Of?cers must be either adopted or rejected. While the Civil Service Law is silent as to how the recommendations of the Hearing Of?cers are -8- 6. of. 11 INDEX. NO. 035912/2017 ROCKLAND COUNTY CLERK 12/05/2017 12:37 NYSCEF 1 RECEIVED NYSCEF: 12/05/2017 rejected or adopted, historically it has always been the Ramapo Town Board?s job to rule on whether to adopt hearing of?cer?s ?ndings. (Reimer Af?davit). New York State issues a document entitled Manual of Procedure in Disciplinary Actions relevant to its civil service employees. (Exhibit The Manual employs the term ?Appointing Of?cer? describing the person or the body which appoints the Hearing Of?cer. The manual also denominates the Appointing Of?cer to decide whether to adopt and implement the ?ndings of the Hearing Of?cer. While the Manual is silent as to a time frame for the Appointing Of?cer to render a decision on the Recommendations, it is still clearly indicated that it is the Appointing Of?cer? 3 job to do so. The Manual of Procedure in Disciplinary Actions states, in relevant part: Evaluation of the Evidence Ordinarily, the decision must be made by the appointing of?cer or authority; it should not be delegated unless the appointing of?cer is disquali?ed due to personal involvement in the matter. It has been held that the appointing officer?s determination must be an ?informed decision? based on ?independent appraisal? of the case. The transcript and the evidence introduced at the hearing must be available for review by the appointing authority. She or he may not merely ?rubber-stamp? the hearing of?cer?s recommendations, although it is permissible for the appointing authority to incorporate, by reference, any or all of the facts and conclusions reported by the hearing of?cer, as part of the ?nal determination. Exhibit ?5 pp 51-52) Article 78 of the CPLR provides a procedure for judicial review of matters cognizable at common law under a writ of mandamus. (CPLR 7801 .) Matter of Dubinksy Liu, 33 Misc. 3d 193, 195 NY Cty. 2011). Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a "clear legal right? to the relief requested. See; Matter of Brusco Braun, 84 674, 679 994]. have repeatedly held that an of?cer against whom a -9- 7. of. 11 ROCKLAND COUNTY. CLERK 12/05/2017 12:37 INDEX NO-- 035912/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/05/2017 proceeding for a writ of mandamus is brought may defend on the ground that the legislation he or she has been asked to enforce is invalid? Li, at 679 See; Matter of Carow Board of Educ. of Citv M, 272 NY. 341, 345 [1936]; See also; Peoole ex rel. Balcom Mosher, 163 NY. 32, 35 [1900]). A writ of mandamus will not issue unless the right that it seeks to enforce is clear. See, Towner imerson, 67 817, 818 (4th Dep?t 1979); See also Belli Berman, 222 582, 583 [2d Dep?t. 1995].) And in the instant matter, the clear legal right is established by the Civil Service Law. Mandamus is an equitable remedy premised on legal considerations. Although an Article 78 brought in the nature of mandamus is based upon legal considerations, the relief it offers is based on equitable principles. See; Matter of Crane Co. Anaconda Co., 39 14, 18 (1976); see also, Matter of Williams Bryant, 57 717, 718 (4th Dep?t. 1977). It is dif?cult if not impossible to imagine how the equities weigh in favor of Ms. Reimer being left in limbo for years as she ages and does not have the opportunity to challenge the Recommendations of the Hearing Of?cers. The function of mandamus is to enforce an administrative act positively required to be done by a provision of law. Usen Sipprell, 41 A.D.2id 251 (4th Dep't 1973). Such is the relief Petitioner seeks herein. All that Ms. Reimer brings this Special Proceeding to request is for the Ramapo Town Board to perform the administrative act it is required to perform. Mandamus, an extraordinary remedy, is available ?only to enforce a clear legal right where the public of?cial has failed to perform a duty enjoined by law.? (New York Civ. Liberties Union State of New York, 4 175, It is important to note that mandamus is not available to compel an of?cer or body to reach a particular outcome. Rather, the purpose of mandamus is to compel a body to perform a mandated -10- 8. of. 11 ROCKLAND COUNTY CLERK 12/05/2017 12:37 INDEX NO- 035912/2017 NYSCEF. DOC.. NO.. 1 RECEIVED. NYSCEFI. 12/05/2017 duty, not how that duty shall be performed (Klostermarm Cuomo, 61 525, 539-540 [1984]). In other words, ?mandamus lies "only to enforce a clear legal right where the public of?cial has failed to perform a duty enjoined by law" (New York Civ. Liberties Union, 4 175, 184 (2005)). Ms. Reimer does not seek the Court to compel the Town Board to reject the Recommendations of the Hearing Of?cers, only for the Board to resolve the matter. If the Board votes against her interests the matter than will be ripe for an Article 78 to challenge the Board?s decision. One ancient and still accepted defense to a writ of mandamus is that it would compel an of?cer to violate his or her oath of of?ce by enforcing an unconstitutional law, and would contradict the principle that "mandamus is never granted for the purpose of compelling the performance of an unlawful act" Matter of Brusco Braun, 84 674, 679 [1994]. Citing; Matter of People ex rel. Sherwood State Bd. of Canvassers, 129 N.Y. As this Article 78 proceeding is commenced within four months of the demand Petitioner made to restore her, this proceeding is timely brought. An Article 78 proceeding seeking mandamus to compel, accrues even in the absence of a ?nal determination. The statute of limitations for such a proceeding runs not from the ?nal determination of the agency but from the date upon which the agency refuses to act. Matter of Santiago v. Kelly, 35 Misc. 3d 631, 632 (NY. 2012) The proceeding here is timely as it was commenced within four months of when respondent refused to grant Petitioner's requests for reinstatement on September 8, 2017. Matter of Santiago v. Kellv. 35 Misc. 3d 631, 632 (NY. 2012) -11- 9. of. 11 FILED: ROCKLAND. COUNTY CLERK 12:3? PM O359l2/j2627 NYSCEF DOC..NO. 1 gem ibe?t the Ceeri eempel? vie, Writ ef .Meedemee, ihe Teen Seem ef Remepe ie fieeliy meke en the Qf?eere? end fee eehetevee eeher ferehee rei?e?; "this (Seem: deems jee?i: end peepee. Bezed: New Yerk; New Yeek 335 2817 Fred. The Lee? {Ef?ee 0f eyed, RC 1. 16 West 23?3 See: 5? Flee: New Yeek: New we 16:31 E. (212} 922w9056 Te: The Tewe efiRe?mepe 237 Ree?te 59 Seffezm New Yerk 189%} -13, 10 Of 11 INDEX. NO. 035912/201? RECEIVED. 12/05/2017 ROCKLAND. COUNTY. CLERK 12/05/2017. 12:37. NYSCEF 1 VERIFICATION State of New York 33.: County of New York I, MELISSA REIMER, am the Petitioner in the within Special Proceeding. I have read the foregoing Petition and know the contents thereof. The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. MELISSA REIMER STATE OF NEW NEW YORK COUNTY 35: Before me personally came the individual named above who executed the above Veri?cation before me on this 3rd Day of December, 2017. 5??6 r?tl"0.0115017527": .- QUALIFIED :0 I Coum .- 2 COMM. Bra 7, A 06):)212019 7) I. I ?1 -13- ll. of. 11