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
-2- 518276B 

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).