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Supreme Court Decides Davis vs Town Board Article 78
Court finds appointment not unethical under laws in force at the time, upholds Town Board's subsequent actions
by Edward Paul Greiff
On April 4, 2007, New York State Supreme Court, Westchester County, Judge Jonathan Lippman issued a Decision Order and Judgment regarding the Article 78 Petition filed by PV Supervisor Samuel Davis and Dawn Powell against the Town of Putnam Valley Town Board and Board of Ethics. Judge Lippman ordered: that the "petition is denied," that the "appointment of Dawn Powell to the position of Confidential Secretary was not unethical as of January 1, 2006, and that the claims raised under Local Law 5 are not ripe for review in the context of this proceeding, and ordered that the proceeding is otherwise dismissed."
In the Article 78 proceeding, Davis and Powell alleged that the Town Board's and Ethics Board's actions were illegal, arbitrary, capricious, unreasonable, an abuse of discretion and contrary to law. Their action sought to reverse the July 24, 2006 decision of the Ethics Board that said that the hiring of Powell by Davis was unethical and to also reverse and annul the August 16, 2006 Town Board Resolution R 06-312 that adopted the Ethics Board decision and the subsequent Town Board Resolution that censured Mr. Davis. In addition, Davis and Powell sought to have the Local Law 5-2006, a "Revision of Code of Ethics" adopted by the Town Board on October 18, 2006 declared as invalid.
The decision by Judge Lippman gave something to both parties, upholding the Board's passage of the Local Law revising the Code of Ethics, but declaring that the actions by Davis hiring Powell was legal under the rules in effect at the time.
Upon hearing the judge's decision Putnam Valley Supervisor Sam Davis made the following comments, "I'm gratified that Judge Lippman stated clearly and unambiguously that my appointment of Dr. Powell is legal and ethical. I researched this carefully before acting, and knew that this appointment was legal and ethical. Dr. Powell has been a real asset to the Town. It would have helped public confidence had the Ethics Board and Town Board acted with respect for the law, instead of divisively, with a political agenda."
Dr. Dawn Powell had the following remarks "This has been a difficult personal ordeal for me. The arrogance of these public officials, the Town Board and Ethics Board, has not helped the Town, and has squandered public resources. Now that ethics and legality have been clearly identified, I hope that the showboating will stop, and the community can move forward with important issues."
Councilman Robert Tendy upon hearing of Judge Lippman's decision and the comments of Davis and Powell issued the following statements. "I am absolutely astonished at Davis' and Powell's "press release." Only a liar like Davis can take a total defeat - his case was dismissed in its entirety - and claim it is a victory. If Davis and Powell want to delude themselves into thinking this decision makes them look less corrupt, they are welcome to their delusion."
"Regarding the opinion of the court: The court completely dismisses Davis' petition. As we told Davis over and over, there were no grounds for this proceeding. He was censured and the censure was absolutely proper. Our ethics law has been upheld (Davis wanted it struck down), and the ethics board decision, as well as the town boards' censure stands (Davis wanted them struck down as illegal)."
"Davis and Powell asked the court to overrule the ethics board decision, overrule the town censure, and declare our ethics law null and void. The court backs us 100% in dismissing Davis' and Powell's petition in its entirety."
"The court does state. 'that as of January 1, 2006, Davis had not committed an actual ethical violation.' We already knew that, and, in fact, this is stated in the Town Board's censure resolution. If he had committed an actual violation of law, we would have fined him and taken other steps as well. This statement by the court should be no consolation to Davis and Powell, for it merely states what we already made clear.
"We declared via censure resolution that his actions violated the spirit and intent of the town law and was, therefore, an appearance of impropriety. We asked him to remove Powell, but we didn't force him to.
"We tried to impress upon Davis that we were censuring him for this appearance of impropriety, i.e., it looks bad to the public and erodes the public's confidence in the integrity of Town Government. Davis and Powell argued that we had no legal right to do this, so he and Dawn filed their lawsuit - which they knew was dead on arrival and would cost the town thousands of dollars.
"In the end, the decision is a victory for our Town. Our condemnation of Davis was proper, and he is going to have to take the public criticism for hiring Powell, trying to overrule our ethics and town board, and trying to strike down our ethics law.
"In my opinion, we should ask Davis and Powell, every single day, to pay our legal fees - over $2,000 dollars. I want the town's money back," Tendy concluded.
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