A state Supreme Court judge has ruled that Middletown erred in getting rid of a part-time code enforcement officer’s job last year.
Robert Moser has been a full-time firefighter for the city since 2000; he was also made a part-time code enforcement officer in 2008. The city got rid of the job at the end of April, 2012.
Moser sued, arguing he was entitled to a pre-deprivation hearing under civil service law. The city argued he wasn’t because the job was eliminated for budget reasons. Corporation Counsel Rich Guertin argued that the mayor has the power to abolish positions, saying it was past practice and that the City Charter is vague on the question.
In a ruling issued Nov. 27, Judge Paul Marx agreed with Moser, saying that the Common Council should’ve voted to abolish the position and didn’t, and that the mayor didn’t have that authority on his own. The charter, he said, gives the Board of Estimate the power to create positions and regulate salaries, subject to Council approval.
“Indeed, had the drafters of the City Charter intended that the power to create and abolish positions be in the office of the Mayor, they could have provided for such,” Marx wrote. “Such powers are conspicuously absent from Section 54 of the Charter which details the Mayor’s powers and duties. Any effort by the Mayor to aggrandize his powers beyond those conferred by the City Charter is impermissible.”
Marx said that Mayor Joe DeStefano contradicted himself — he wrote in his affidavit that Public Works Commissioner Jacob Tawil recommended the job be abolished in April 2012, but said at a hearing that it was his idea to abolish the job due to budgetary concerns.
“Surprisingly, petitioner’s counsel did not explore this inconsistency on cross examination,” Marx wrote. “Nevertheless, it is of significance to this Court that respondents’ explanation of the rationale for eliminating the position may represent revisionist history.”
The city held off on getting rid of Moser’s job, since another full-time code enforcement officer was out due to injuries from a car accident; that officer gave the city notice in March 2012 that he would be retiring, which is when the city moved forward on getting rid of Moser’s job.
Marx didn’t think it made sense to hold off on getting rid of a part-timer until you find out a full-timer’s going to retire, since that would compound staffing issues, not help.
“The pretzel logic of this argument escapes this Court’s grasp,” he wrote.
DeStefano said the city plans to appeal.
“I think the judge erred in many areas,” he said.
DeStefano said state civil-service law says you can’t hold two competitive positions — firefighter and part-time code enforcement officer in this case. He also argued that Moser would be entitled to time-and-a-half for any time worked over 40 hours, if he were allowed to keep both positions.
“I don’t think a judge has the authority to order a municipality to do something that’s, in our minds, illegal, and take a job away from somebody else,” DeStefano said. “It doesn’t make sense.”
He said the Council would vote now to formally abolish the position, and to clarify the city charter on who has authority to create and abolish positions. He also said they intend to replace Moser’s job with a full-time code enforcement officer.
I’ve reached out to Moser’s lawyer, Jonathan Lovett, for his take, and will update if/when he gets back to me.
UPDATE: Just talked to Lovett. Unsurprisingly, he’s pleased with the ruling.
“I thought we would win, because I thought their position was absurd,” he said. “I think the judge hit it right on the head when he talked about their pretzel-twisted reasoning.”
Lovett said having a mayor abolish job positions violates the separation of executive and legislative powers.
“I’ve never heard of any situation where a mayor can create or abolish job positions,” he said. “That’s a function of the Legislature, because it’s a function of funding.
He didn’t seem worried about an appeal.
“That’s fine with me,” he said. “What they’ll end up with is a precedent that’s even more damning.”
Read the ruling for yourself here:
Judge Marxs ruling on Moser v. Middletown