Over the course of the past month, members of the Pawling Town Board have been named in a civil complaint stemming from the appointment of former Supervisor David Kelly to a vacant seat on the Board earlier this year. The lawsuit, filed by three Pawling residents, seeks to vacate Kelly’s appointment to the Town Board on the grounds that it violated Town law and does not represent the public’s best interest.
Last summer, Supervisor David Kelly was defeated in the local Republican Caucus by current Supervisor James Schmitt, whose tenure began on January 1, 2018. At a January 3 organizational meeting, a decision was made to appoint Kelly to the seat on the Board that previously had been vacated by Councilman Michael Montemarano, whose term of office would end in December 2018. The motion was introduced by Deputy Supervisor Bill Johnson for Kelly to fill the position, effective January 1.
Councilman Phil DeRosa spoke out against the decision, suggesting instead that the Board wait and consider a broader pool of candidates to fill the vacancy. Ultimately, the vote to appoint David Kelly to the seat passed 3 – 1.
The lawsuit alleges that making Councilman Kelly’s appointment retroactive to the first of the year was done improperly and in violation of New York State Town Law, which prohibits the retroactive filling of vacancies. The lawsuit claims also that this action was taken to keep Councilman Kelly’s service to Town government continuous and thus qualify him for lifetime healthcare benefits after next year.
The claim was filed on March 30, with papers being served on Town officials on the afternoon of April 4. The action is an Article 78 proceeding, which seeks to challenge actions of administrative agencies and other government bodies. It was filed in the State Supreme Court and names the Town of Pawling and all members of the Town Board as part of the complaint. The plaintiffs are represented by William T. Burke, Esq., of O’Neil & Burke, LLP, in Poughkeepsie.
The Town of Pawling is being represented by Robert Shadur, Esq., who declined to comment on ongoing litigation.
Currently, the defendants are in the process of filing responsive pleadings, and attorneys involved have consented to a one-month adjournment. A new date for a hearing has not been established but is expected to be set for early June.