Vesely v. Town of New Windsor

In a proceeding pursuant to CPLR article 78 to review a determination of the [771] Town Board of the Town of New Windsor which sustained four charges against the petitioner and terminated his employment, the town appeals from an order of the Supreme Court, Orange County (Isseks, J.), dated June 30,1981, which, inter alia, annulled the determination and remanded the matter to the town board for further proceedings on the hearing panel’s report. Leave to appeal is granted by Justice Bracken. Order affirmed, without costs or disbursements. The town board’s determination should be set aside because of the participation of town board member Beth Green, who was not a member of the hearing panel and who thereafter voted with the majority of the town board. Mrs. Green is the wife of the town superintendent of highways, who participated in the investigation which resulted in the filing of charges, and Mr. Green was a witness at the hearing (see Matter of Aiello v Tempera, 65 AD2d 791). Special Term was correct in disqualifying Beth Green from participating in this matter. The town board, by a three-to-two vote, rejected the hearing panel’s majority recommendation which had sustained two of the four charges against the petitioner and had recommended a penalty of “loss of 2 months pay”, and found the petitioner guilty of all four charges. The town board then dismissed the petitioner. The record clearly discloses that the vote of the five-member town board was unanimous in finding the petitioner guilty of the two of the four charges which had previously been sustained by the majority of the hearing panel. A remand is required in order that only the four remaining eligible town board members consider, de novo, without any participation by Beth Green, the hearing panel’s report and that thereafter there be recorded the votes of each individual member as to each charge, and also the penalty to be imposed if there is established a majority vote finding the petitioner guilty on a particular charge. Section 63 of the Town Law provides: “Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of all the members of the town board.” There will exist no deadlock as a result of the disqualification of Mrs. Green. The failure to obtain a majority vote on a specific charge will result in finding the petitioner not guilty on such specified charge. The dissent has concluded that the “rule of necessity” requires that the disqualification of Beth Green must be ignored if the law authorizes no other person to take whatever action is necessary to a determination (see Matter of Morgenthau v Cooke, 56 NY2d 24, 29, n 3; Sharkey v Thurston, 268 NY 123,126-129; Matter of Eigo v Wheeler, 248 App Div 53, 57). The dissent holds that the rule is applicable since the law authorizes no direction to the remainder of the deadlocked board to resume deliberation in the vain hope that some consensus will emerge. However, based upon section 63 of the Town Law the failure to obtain the affirmative vote of the majority of the town board will result in a failure to find the petitioner guilty of a specified charge, which is not a deadlocked vote. The “rule of necessity” is inapplicable to the disqualification of one of a five-member town board. It is applicable only to an individual or body, if by law only the said individual or the said body as an entire body must hear and determine an issue. Mangano, J. P., Gulotta and Bracken, JJ., concur.