Papers Submitted:Notice of Amended Petition (Mot. Seq. 01) xNotice of Motion (Mot. Seq. 02) xNotice of Motion (Mot. Seq. 04) xNotice of Motion (Mot. Seq. 05) xMemorandum of Law in Support xMemorandum of Law in Support xAffirmation in Opposition xMemorandum of Law in Opposition xMemorandum of Law in Opposition xReply Affirmation xReply Affirmation xReply Affidavit xReply Memorandum of Law xReply Memorandum of Law xReply Memorandum of Law xSur-Reply Affidavit xSur-Reply Memorandum of Law xFor a Judgment Pursuant to Article 78 of the CPLR, Declaratory Judgment Pursuant to Section 3001 of the CPLR Petitioners, Laura A. Gillen, as Supervisor of the Town of Hempstead, and certain resident-taxpayers, bring this hybrid Article 78 and declaratory judgment proceeding challenging two resolutions passed by the former composition of the Town Board of the Town of Hempstead (the “Town”), along with its former Supervisor, Anthony J. Santino (“Santino”). Also named as a Respondent is the CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, LOCAL 880 (“CSEA”).On Election Day, November 7, 2017, then Supervisor Santino ran for reelection and was defeated by Petitioner, Laura Gillen.1 The following month, at former Supervisor Santino’s last board meeting in office, a resolution was passed amending certain provisions of the Collective Bargaining Agreement (“CBA”) that were heavily negotiated and ratified a mere five months earlier. The amendments effectively prohibited the Town from terminating virtually all CSEA employees for any reason except misconduct and incompetence, as well as broadened the class of employees entitled to the protections afforded by the CBA’s Disciplinary Procedure. At the same meeting, another resolution was passed authorizing the transfer/appointment of 197 employees from the Office of the Supervisor and the Office of the Town Clerk to various departments. At issue here are 14 of those employees who were transferred from the Office of the Supervisor and the Town Clerk’s Office and placed in newly protected civil service positions created by the CBA amendments without an appropriate reduction in their salaries.The Petitioners contend that the resolutions were promulgated in violation of various provisions of the Town Law and General Municipal Law and were done solely to restrict Supervisor Gillen’s authority and protect patronage employees at the expense of Town residents. By this proceeding, the Petitioners seek to have the resolutions declared null and void on the grounds that the Town’s conduct was unreasonable, arbitrary and capricious, and violated lawful procedure.The following material facts are drawn from the parties’ submissions.FACTSIn 2017, Santino was the duly elected Supervisor of the Town. On November 7, 2017, Town residents elected a new Supervisor, Petitioner Gillen, with her term of office commencing in January 2018.Well before the November 2017 election, former Supervisor Santino spent “several weeks” negotiating the terms of the new union contract with CSEA intended to govern a 5-year period with effective dates of January 1, 2017 through December 31, 2021. In July 2017, the new 5-year union contract was ratified by vote of the Town Board.The original bargained-for terms of the CBA permitted the Town to terminate employees for reasons due to budgetary, economy, consolidation, abolition of functions or curtailment of activities pursuant to Section 45 entitled “layoff and rehiring procedure”. Section 15 of the original CBA governed employee severance rights “[w]hen, because of economy, consolidation, abolition of functions or curtailment of activities, an employee’s position is abolished and the Employer after the exercise of reasonable efforts is unable to offer the employee another position comparable as to compensation…” (See 2017-2021 CBA at §45, p. 36; §15, p. 24, annexed to Petitioner Gillen’s Opposition as Exhibit “1″).Moreover, the original CBA contained a Disciplinary Procedure which, inter alia, afforded certain protections to various classes of employees (Id. at §1.4 of Disciplinary Procedure, p. 55). As relevant here, employees that held positions in categories designated as “exempt”, “unclassified service”, “confidential” or “influencing policy”, were not entitled to the protections of the Disciplinary Procedure.Resolution No. 1823-2017 — The “Memorandum of Agreement”Following the loss of former Supervisor Santino’s reelection bid, the Town Board voted to approve Resolution No. 1823-2017, authorizing Santino to execute a Memorandum of Agreement (the “MOA”), which amended Section 45 (layoff and rehiring procedure) and Section 1.4 of the Disciplinary Procedure of the CBA. (See Amended Petition at Exhibit “A”). Specifically, Section 45 was amended to add a “no layoff clause”, providing, in pertinent part:…no employee shall be terminated for reasons due to budgetary, economy, consolidation, abolition of functions, abolition of position or curtailment of activities but may be terminated only for misconduct or incompetence.(See Amended Petition at Exhibit “M” [emphasis supplied]).The MOA further amended Section 45 by adding a proviso whereby the original layoff and rehiring procedure and related employee severance rights would automatically be restored in the event that the no layoff clause ceased to be in effect:While [the no layoff clause] remains in effect, the provisions in [the layoff and rehiring procedure] of this Section shall cease to be in force and effect and [employee severance rights provision] of the CBA shall cease to be in force and effect. However, if the [no layoff clause] ceases to be in effect, then [the layoff and rehiring procedure] of this Section shall control and [employee severance rights provision] shall be restored.The MOA also amended Section 1.4 of the Disciplinary Procedure by expanding the list of employees entitled to the protections afforded thereunder. This provision, as amended by the MOA, provides as follows:1.4 An employee who is other than full-time, temporary, provisional, or in the unclassified service shall not have the protections of this procedure in this Agreement. An employee in the Office of the Supervisor, Town Board, Town Clerk or Receiver of Taxes who is exempt (unless otherwise protected under the Civil Service Law), or in the unclassified service, or in a position designated by the Civil Service Commission as “confidential” or “influencing policy” in those offices shall not have the protections of this procedure in this Agreement.(See MOA at p. 1, annexed to Amended Petition as Exhibit “M” [emphasis supplied]).By specifically amending it to read that only those employees from the four elected offices holding those positions do not have protection, the result is that the employees in those categories in all other departments/offices are now protected. This emanates from the Latin maxim, expressio unius est exclusio alterius, meaning, when one or more things of a class are expressly mentioned others of the same class are excluded.Claimed Violation of Town Ethics Code — Vote on the MOAThe seven members of the Town Board at the December 12, 2017 meeting were: former Supervisor Santino and Councilmembers, Dorothy L. Goosby, Bruce A. Blakeman, Anthony P. D’Esposito, Edward Ambrosino, Erin King Sweeney and Dennis Dunne, Sr. The MOA passed by a 4-3 vote. The decisive votes in favor of the MOA were cast by Santino and D’Esposito, both of whom had relatives that stood to benefit from the MOA.At the meeting, Town residents emphatically voiced their concerns regarding the ethical implications raised by Board members voting on matters in which their relatives have an interest (See Minutes of Board Meeting at pp. 199-200, annexed to Amended Petition as Exhibit “O”). At first, the Town Attorney told the residents that no ethical issues exist. The Town Attorney then advised that any ethical issues would be addressed during the vote (Id.). Despite the foregoing, however, the votes were cast, not a single Board member abstained, and the MOA was approved by a 4-3 vote (Id. at pp. 224-229).The Petitioner challenges the promulgation of the MOA insofar as the votes cast by former Supervisor Santino and Councilman D’Esposito violated the Town’s Ethical Standards (the “Town Ethics Code”) which prohibits an elected official from casting a vote for any matter in which a relative has a financial interest (See Town of Hempstead Code, Chapter 38, Ethical Standards, §38-1[I]). Pursuant to subdivision I of Section 38-1, a relative is defined as a spouse, mother, father, sister, brother, or child. Here, the Petitioner highlights that Santino’s sister and Councilman D’Esposito’s mother, brother and sister-in-law were all employees of the Town. Additionally, D’Esposito’s father was a signatory to the MOA. Thus, the Petitioner contends that Santino and D’Esposito were under an ethical obligation to abstain from voting on the MOA. It is further submitted that, had Santino and D’Esposito not voted, a quorum of the Town Board would still have existed, yet the Resolution to approve the MOA would have failed without their votes.Resolution 1871-2017 — The “Personnel Transactions”At the same meeting, the Town Board also voted to approve Resolution No. 1871-2017, authorizing, inter alia, the transfer of several employees to various departments together with their salaries (the “Personnel Transactions”) (See Resolution No. 1871-2017, annexed to Amended Petition as Exhibit “B”).In support, the Petitioner proffers the sworn affidavit of Averil Smith, a certified public accountant employed as the Town’s Director of Finance since January 2018. The Court notes that while the Amended Petition and supporting memorandum of law refer to either “192″ or “190″ personnel actions, Smith’s affidavit only challenges 14 personnel actions. Smith attests that the Comptroller’s Office provided her with a “breakdown of the cost associated with retaining these 14 employees.” (See Smith Affidavit
