Judges: Lindley, Peradotto, Sconiers, Smith, Whalen
Filed Date: 8/8/2014
Status: Precedential
Modified Date: 11/1/2024
Appeal from an order of the Supreme Court, Erie County (Michael L. D’Amico, A.J.), entered October 9, 2013. The order denied the motion of defendants to dismiss the complaint and/or for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law by granting the motion in part, dismissing the complaint in its entirety against defendants Town Council of Town of Sardinia and Town of Sardinia Town Supervisor and dismissing the second cause of action against defendant Town of Sardinia, and as modified the order is affirmed without costs.
Memorandum: Plaintiff was employed as code enforcement officer for defendant Town of Sardinia (Town) until his termination by defendant Town Council of Town of Sardinia (Council). Following his termination, plaintiff commenced this action against the Town, the Council, and defendant Town of Sardinia Town Supervisor (Supervisor) under Civil Service Law § 75-b, the public employees’ whistleblower statute, alleging, inter alia, that his “termination was in retaliation for his refusal to perform” unauthorized functions and for his “act[ing] as a whistle-blower in reporting” those unauthorized directives “to the Town’s outside attorney and others.” Supreme Court denied defendants’ pre-answer “motion to dismiss and/or for summary judgment,” and defendants appeal.
We agree with defendants that the court erred in denying their motion insofar as it sought dismissal of the complaint
We reject defendants’ contention, however, that the court erred insofar as it denied their motion to dismiss the first cause of action against the Town for failure to state a cause of action. The public employees’ whistleblower statute prevents a public employer from, inter alia, terminating a public employee “because the employee discloses to a governmental body information . . . which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action” (Civil Service Law § 75-b [2] [a]). The term “improper governmental action” refers to “any action by a public employer or employee, or an agent” thereof, “which is undertaken in the performance of [his or her] official duties . . . and which is in violation of any federal, state or local law, rule or regulation” (§ 75-b [2] [a]). The list of governmental bodies to which disclosure may be made includes, as relevant herein, a member of a town’s legislature (see § 75-b [1] [c] [iii]). In addition, the statute requires that the employee, prior to disclosing the information, must have “made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and . . . provide[d] the appointing authority or designee a reasonable time to take appropriate action” (§ 75-b [2] [b]). The term “appointing authority” refers to “the officer, commission or body having the power of appointment to subordinate positions” (Civil Service Law § 2 [9]), which in this case is the Supervisor and the Council.
We conclude that plaintiff adequately alleged that he reasonably believed that he had been directed to perform an unlawful act. Civil Service Law § 75-b does not require an actual violation of the law for a subsequent action to be maintained thereunder (see Bordell v General Elec. Co., 88 NY2d 869, 871 [1996]; Barker v Peconic Landing at Southold, Inc., 885 F Supp 2d 564,
We reject defendants’ contention that plaintiffs purported act of insubordination for failing to carry out the allegedly unlawful directive constitutes a “ ‘separate and independent basis’ ” for the termination (cf. Rigle v County of Onondaga, 267 AD2d 1088, 1089 [1999], lv denied 94 NY2d 764 [2000]), inasmuch as the purported act of insubordination related directly to plaintiffs act of disclosure. We further conclude that plaintiff adequately alleged that he made a good faith effort to inform either the Council or the Supervisor (see generally Brohman v New York Convention Ctr. Operating Corp., 293 AD2d 299, 299-300 [2002]), prior to disclosure to a governmental body (see Civil Service Law § 75-b [2] [a], [b]). Plaintiff averred in his affidavit that he disclosed allegedly unlawful directives to the Supervisor and to at least one person who qualifies as a member of a governmental body, i.e., a town councilman (see § 75-b [1] [c] [iii]). Lastly, the transcript from plaintiffs examination pursuant to General Municipal Law § 50-h, which plaintiff submitted in opposition to the motion, supports the inference that plaintiff had multiple conversations with the Supervisor and the Town Attorney, giving them ample opportunity to withdraw the allegedly unlawful directive (see Civil Service Law § 75-b [2] [b]), before disclosing that directive to the Town Councilman (see generally Leon, 84 NY2d at 87-88).