In In the Matter of Lishan Aklog v. Town of Harrison, a four-judge panel at the Second Department ended a town drama predating the Covid-19 Pandemic, and in so doing, clarified the sometimes-nuanced distinction between legislative and administrative actions by a township. See Aklog v. Harrison, N.Y.S.3d (2023).
The Respondent, Anthony Robinson, has since 2012 served as the Commissioner of Public Works in the Town of Harrison in Westchester County. At a 2020 Town Board meeting, members expressed concerns about Robinson’s primary residency outside Harrison. Fueled by these concerns, the Board voted not to reappoint Robinson to his position, and instead, to appoint an acting commissioner. Importantly, the Board concretized its goals by adopting two resolutions.
But to the Board’s chagrin, the resolutions were never implemented as Counsel for Harrison advised, on bases unexplored by the Court, of legal consequences of summarily removing Robinson from his post. Thus, Robinson has continued serving as Commissioner despite the figurative coup d’état attempt.
But the Petitioner refused to accept the status quo, and filed suit in the Supreme Court, Westchester County. Petitioner initiated the action pursuant to CPLR § 78, seeking declaratory relief that would remove Robinson from his post and install the acting commissioner. The Court was persuaded by the argument of Robinson’s Counsel that the Petitioner lacked standing, and Petitioner appealed.
New York courts have long been guided by the rule that “citizen taxpayers have standing to ‘challenge important governmental actions’ when the failure to accord standing would ‘erect an impenetrable barrier to any judicial scrutiny of legislative action’” See Matter of Colella v. Bd of Assessors of Nassau Cty., 95 NY2d 401 (Ct. of Appeal 2000). In the instant matter, the Court needed to examine whether town board resolutions constituted administrative or legislative action and deemed them the former.
The Court relied on Matter of Clark v. Town Bd. Of Town of Clarkstown and held that Robinson’s appointment was a matter of administrative, rather than legislative, determination. See Clark v. Clarkstown, 28 A.D.3d 553 (2nd Dept. 2006). Much like Clark, which concerned the appointment of a local police chief, Aklog concerned the appointment of a local official. The Petitioner also failed to demonstrate that Robinson’s continuation as Commissioner was a matter “imperiling the public interest,” as required by General Municipal Law § 51.
In Aklog, the Second Department did not outline an ironclad or universal principle that town board resolutions are not legislative in nature. But the key trend within the Department is towards such resolutions constituting administrative action.
Thanks to Mark Kindschuh for his contribution to this post. Please contact Heather Aquino with any questions.