Submitted on Brief

Supreme Court of the State of New York Appellate Division, Fourth Department
Docket # OP 11-00539
In the Matter of the Application pursuant to Public Officers Law 36 by Daniel T. Warren Petitioner -AgainstRobert J. Bielecki from the office of Comptroller of the Town of West Seneca, Erie County, New York; and Wallace C. Piotrowski from the office of Budget Officer and Supervisor of the Town of West Seneca, Erie County, New York Respondents

Petitioners Brief
Daniel T. Warren Petitioner, Pro Se 836 Indian Church Road West Seneca, New York 14224

TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................................................1 TABLE OF CITATIONS ............................................................................................................................................2 QUESTIONS PRESENTED .......................................................................................................................................4 PRELIMINARY STATEMENT ................................................................................................................................ 4 ARGUMENT ............................................................................................................................................................... 5 APPLICABLE STANDARD .............................................................................................................................................5 PETITIONERS REQUEST FOR JUDICIAL NOTICE............................................................................................................6 PETITIONERS REQUEST FOR AN ADVERSE INFERENCE TO BE DRAWN FROM RESPONDENTS FAILURE TO PRODUCE EVIDENCE AND TESTIMONY ........................................................................................................................................ 8 EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENTS BIELECKI AND/OR PIOTROWSKI ON THE FIRST CAUSE OF ACTION ALLEGED IN THE VERIFIED PETITION ............................................................................................9 EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENT PIOTROWSKI ON THE SECOND CAUSE OF ACTION ALLEGED IN THE VERIFIED PETITION ........................................................................................................................ 22 RESPONDENTS ALLEGED DEFENSES TO THIS PROCEEDING ....................................................................................... 27 CONCLUSION .......................................................................................................................................................... 28

TABLE OF CITATIONS
State Cases
De Falco v. Doetsch, 208 A.D.2d 1047 ....................................................................................................................... 28 Donovan v. West Indian American Day Carnival Assoc., Inc., 6 Misc.3d 1016[A], 800 NYS2d 345 (2005) ............ 10 Farrell v Labarbera, 181 A.D.2d 715 .............................................................................................................................8 Gumo v. Canzoneri, 263 A.D.2d 456 .......................................................................................................................... 29 In re Breann B., 185 A.D.2d 711 ...................................................................................................................................8 Kaiser v Metropolitan Transit Authority, 170 Misc. 2d 321 ....................................................................................... 10 Kingsbrook Jewish Medical Ctr. V. Allstate Insurance Co., 61 AD3d 13.....................................................................6 Kozlowski v City of Amsterdam, 111 A.D.2d 476 ...................................................................................................... 10 Loos v City of New York, 257 App Div 219 .................................................................................................................7 Matter of Baker v Baker, 87 Misc.2d 592 ............................................................................................................... 5, 28 Matter of Chandler v Weir, 30 AD3d 795 ................................................................................................................... 29 Matter of Feustel v. Rosenblum, 36 A.D.3d 615 ...........................................................................................................5 Matter of McCarthy v Sanford, 24 AD3d 1168 ........................................................................................................... 29 Matter of Mergenhagen, 50 AD3d 1486 ...................................................................................................................... 27 Matter of Sloane v Walsh, 245 NY 208.........................................................................................................................7 Namer v 152-54-56 West 15th Street Realty Corp et al, 108 AD2d 705 .......................................................................6 Newman v Strobel, 236 App Div 371............................................................................................................................5 Noce v. Kaufman, 2 N.Y.2d 347 ...................................................................................................................................8 People ex rel. Barr v Zeyst, 23 NY 140 .........................................................................................................................7 People ex rel. Katz v. Jones, 10 Misc. 2d 1067 ........................................................................................................... 11 People ex rel. Lynch v Pierce, 149 App Div 286 ...........................................................................................................7 People ex rel. Regan v York, 78 App Div 432 ..............................................................................................................7 People v. Caban, 5 N.Y.3d 143 ................................................................................................................................... 12 People v. Conrow, 200 N.Y. 356 ................................................................................................................................. 13 People v. Koerner, 154 N.Y. 355 ................................................................................................................................. 13 Perkins v Perkins, 130 AD 193 ......................................................................................................................................6 Ptasznik v Schultz, 247 AD2d 197 ................................................................................................................................ 6 Reed v. Reed, 195 A.D.2d 451 .................................................................................................................................... 27 Smith v. Perlman, 105 A.D.2d 878 .............................................................................................................................. 29 Summers v City of Rochester, 60 AD3d 1271 ............................................................................................................ 27 Thurmond v. Thurmond, 155 A.D.2d 527 ................................................................................................................... 27 Town Bd. v. Hallock, 2 Misc. 3d 826 .......................................................................................................................... 28 West v. Grant, 243 A.D.2d 815 ................................................................................................................................... 27

Statutes
Article 3 of the General Municipal Law ........................................................................................................................9 Article 8 of the Town Law..................................................................................................................................... 21, 30 CPLR 4520 .................................................................................................................................................................9 General Construction Law 41-a ..................................................................................................................................7 General Municipal Law 35 .........................................................................................................................................9 Penal Law 200.00 ......................................................................................................................................... 22, 24, 26 Penal Law 200.45 ......................................................................................................................................... 22, 24, 26 Public Officers Law 36 ...............................................................................................................................................5 Town Law 101 .......................................................................................................................................................... 19 Town Law 119 ........................................................................................................................................ 13, 15, 20, 29 Town Law 123 .................................................................................................................................................... 19, 29 Town Law 125 ...................................................................................................................................................passim Town Law 29 .................................................................................................................................................. 9, 16, 20

Town Law 30 ..............................................................................................................................................................9 Town Law 34 ............................................................................................................................................................ 19 Town Law 63 ...................................................................................................................................................... 20, 28

Federal Cases
Beech Aircraft Corp. v Rainey, 488 U.S. 153 ....................................................................................................... 10, 11 Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d Cir. 1986)....................... 11 Ellis v. International Playtex, Inc., 745 F.2d 292 ........................................................................................................ 11 United States v. Hudson, 884 F.2d 1016 ..................................................................................................................... 11

Federal Rules
Federal Rules of Evidence, Rule 803(8)(C) ................................................................................................................. 10

Treatises
48 NY Jur, Public Officers and Employees, 232 ........................................................................................................4 48 NY Jur, Public Officers and Employees, 233 ........................................................................................................4 Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4520:3, p. 246 ................... 10

Opinion of the State Comptroller

1978 Op St Compt File #916 ....................................................................................................................................... 19 1982 N.Y. Comp. LEXIS 479; 1982 N.Y. St. Comp. 313 ........................................................................................... 29

QUESTIONS PRESENTED
1. Should Respondent Bielecki be removed from office pursuant to Public Officers Law 36 based on the first cause of action alleged in the verified petition? 2. Should Respondent Piotrowski be removed from office pursuant to Public Officers Law 36 based on the first cause of action alleged in the verified petition? 3. Should Respondent Piotrowski be removed from office pursuant to Public Officers Law 36 based on the second cause of action alleged in the verified petition?

PRELIMINARY STATEMENT
This is a proceeding seeking the removal of Respondent Piotrowski from the office of Supervisor and Budget Officer of the Town of West Seneca and Respondent Bielecki from the office of Comptroller of the Town of West Seneca pursuant to Public Officers Law 36. The grounds for removal that this proceeding is based upon are: on the First Cause of Action against Respondents Bielecki and Piotrowski for their gross dereliction of duty and pattern of routine disregard of mandates of the law and procedure as set forth in the September 2010 report by the Office of the State Comptroller, Division of Local Government and School Accountability entitled Report of Examination of the Town of West Seneca Misuse of Town Credit Cards and Resources that was admitted into evidence at the hearing before the referee (hereinafter State Comptrollers Report) ; The Second Cause of Action seeks the removal of Respondent Piotrowski based upon his "corrupt bargaining for appointment (48 NY Jur, Public Officers and Employees, 232), and [attempted] bribery (48 NY Jur, Public Officers and Employees, 233)." Application of Baker, 87 Misc. 2d 592, 594 (N.Y. Sup. Ct. 1976).

This proceeding was commenced by the filing of a Notice of Petition with Verified Petition in the Court Clerks Office on March 16, 2011. Issue was joined when Respondents

filed and served their respective answers on or about April 29, 2011. This Court then appointed the Hon. Stephen R. Sirkin as referee to hear testimony and take evidence and issue findings of facts by order dated June 10, 2011. A hearing was held before the referee on July 20, 2011. Petitioner thereafter served and filed his Verified Reply by leave of this Court on or about August 5, 2011. The referee issued his report on or about August 24, 2011. By order of this Court entered on September 9, 2011 the Referees Report was sealed and the parties were prohibited from disclosing the report or its contents. For the purposes of this brief Petitioner will presume the parties and the Courts familiarity with this report and will not disclose or summarize its contents herein.

ARGUMENT APPLICABLE STANDARD

Pursuant to Public Officers Law 36 this court is empowered to remove a public official for what amounts to intentional wrongdoing, gross dereliction, moral turpitude or a violation of a public trust. The applicable burden of proof to this proceeding if proof by a preponderance of the evidence (see Matter of Feustel v. Rosenblum, 36 A.D.3d 615; Matter of Baker v Baker, 87 Misc.2d 592). As the court noted in Matter of Newman v Strobel, 236 App Div 371, 373, the object of section 36 of the Public Officers Law is "not to punish the offender, but to improve the public service." The report of a Referee should be confirmed if the findings therein are supported by the record. Generally, New York courts will look with favor upon a Referee's report, inasmuch as

the Referee, as trier of fact, is considered to be in the best position to determine the issues presented (see, Namer v 152-54-56 West 15th Street Realty Corp et al, 108 AD2d 705, 485 N.Y.S.2d 1013 [1985]; see also, Perkins v Perkins, 130 AD 193, 114 N.Y.S. 960, 1 Civ. Proc. Rep. (n.s.) 177 [1st Dept 1909]).

PETITIONERS REQUEST FOR JUDICIAL NOTICE

Petitioner previously sought by way of a motion for this Court to take judicial notice of various documents. In this Courts July 21, 2011 order on the motion, in this regard, was dismissed without prejudice to petitioner raising this issue either before the referee or in the brief to this Court. Case law recognizes generally, two disjunctive circumstances where information may be judicially noticed. The first is when information "rests upon knowledge [that is] widely accepted" (Ptasznik v Schultz, 247 AD2d 197 at 198 [emphasis added]) such as calendar dates, geographical locations, and sunrise times (id. at 198). The second "rests upon . . . sources [that are] widely accepted and unimpeachable" (id. [emphasis added]), such as reliable uncontested governmental records. The Appellate Division, Second Department has noted numerous cases in which courts took judicial notice of documents downloaded from government websites. Kingsbrook Jewish Medical Ctr. V. Allstate Insurance Co., 61 AD3d 13, 20, 871 N.Y.S.2d 680 (2d Dept. 2009) (J. Dillion, in dictum) (citing Munaron v. Munaron, 21 Misc.3d 295, 862 N.Y.S.2d 796 (NY Sup. Ct. 2008); Parrino v. Russo, 19 Misc.3d 1127[A], 866 N.Y.S.2d 93, 2008 NY Slip Op 50925[U], 2008 WL 1915133, at *3 (NY Civ. Ct. 2008); Nairne v. Perkins, 14 Misc.3d 1237[A], 836 N.Y.S.2d 501, 2007 NY Slip Op 50336[U], 2007 WL 656301, at *1 (NY Civ. Ct. 2007); Proscan

Radiology of Buffalo v. Progressive Casualty Insurance Co., 12 Misc.3d 1176[A], 820 N.Y.S.2d 845, 2006 NY Slip Op 51242[U], 2006 WL 1815210, at *5 (NY City Ct. 2006); see also Bernstein v. City of New York, 2007 N.Y. Slip Op 50162[U], 14 Misc.3d 1225[A], 836 N.Y.S.2d 491 (NY Sup. Ct. 2007); Miriam Osborn Memorial Home Assn. v. Assessor of City of Rye, 9 Misc.3d 1019, 800 N.Y.S.2d 909 (NY Sup. Ct. 2005)). Lastly minutes of the meetings of public bodies are prima facie evidence of the events that occurred therein (General Construction Law 41-a). Also ordinarily, extrinsic evidence is inadmissible to contradict, supplement, add to or explain municipal records, including the minutes of a town board meeting (see, Matter of Sloane v Walsh, 245 NY 208, 214; People ex rel. Barr v Zeyst, 23 NY 140; Loos v City of New York, 257 App Div 219, 223; People ex rel. Lynch v Pierce, 149 App Div 286, 288-289; People ex rel. Regan v York, 78 App Div 432, 435436, affd 174 NY 533). Petitioner respectfully requests that this Court take judicial notice of the following documents: Exhibits A, B, C, D, E, and F attached to Petitioners Verified Reply which are certified copies of minutes of various meetings of the West Seneca Town Board obtained from the West Seneca Town Clerk.

PETITIONERS REQUEST FOR AN ADVERSE INFERENCE TO BE DRAWN FROM

RESPONDENTS FAILURE TO PRODUCE EVIDENCE AND TESTIMONY

At the hearing before the referee on July 20, 2011 both Respondents were present and called to testify on the Petitioner case as adverse witnesses. Both Respondents were given the opportunity to present their own evidence but declined, not just once but twice (Tr. Page 42 line 22 through Page 43 line 4; Page 46 lines 4 8 (References to the transcript is to the hearing held before the Hon. Stephen R. Sirkin, Referee, on July 20, 2011)) and Respondents rested upon Petitioners proof at the hearing. The Court of Appeals in Noce v. Kaufman, 2 N.Y.2d 347, 353 held that "where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits ( Perlman v. Shanck, 192 App. Div. 179; Milio v. Railway Motor Trucking Co., 257 App. Div. 640; Borman v. Henry Phipps Estates, 260 App. Div. 657)." (See also In re Breann B., 185 A.D.2d 711 (4th Dept. 1992). "It is well settled that where one party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference against him warranted by the evidence may be considered" (Farrell v Labarbera, 181 A.D.2d 715, 716, 581 N.Y.S.2d 226 [1992]).

EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENTS BIELECKI

AND/OR PIOTROWSKI ON THE FIRST CAUSE OF ACTION ALLEGED IN THE

VERIFIED PETITION

This report is the result of an audit performed by the Office of the State Comptroller pursuant to his duties under Article 3 of the General Municipal Law under the supervision of Chief Examiner, Robert E. Meller. The records that were reviewed in conducting this audit were the records kept by the Town Comptroller and Town Supervisor and the minutes of the Town Board minutes. The Respondents, Supervisor Piotrowski and Comptroller Bielecki were under a business duty to properly and accurately record in their records the financial transactions of the town (Town Law 29). The West Seneca Town Clerk, Patricia DePasquale, was under a business duty to accurately record the minutes of every meeting of, and record the business transacted by, the Town Board and is the custodian of all the records, books and papers of the town (Town Law 30(1)). According to the report the audit was conducted in accordance with generally accepted government auditing standards (GAGAS) and used procedures and methodologies as set forth in Appendix C of this document. General Municipal Law 35(1) requires that this report be on file in the Town Comptrollers office. Respondent Bielecki, who is the Town Comptroller, testified that it is a true copy of a document that is on file in his office and is therefore admissible pursuant to CPLR 4520 (Tr. Page 29 lines 8-17). It is after this testimony and some colloquy between counsel for the parties and the referee that the referee admitted it into evidence (Tr. Page 29 line 18 to Page 31 line 15).

All parties stipulated as to this documents authenticity prior to the hearing as evidenced by the colloquy at the hearing (Tr. Page 26 line 17 to Page 27 line 13) New York courts may look to the Federal counterpart in the Federal Rules of Evidence, Rule 803(8)(C) and the judicial treatment thereof (Donovan v. West Indian American Day Carnival Assoc., Inc., 6 Misc.3d 1016[A], 800 NYS2d 345 (2005)). Under FRE 803(8)(C) factual finding resulting from an investigation made pursuant to authority granted by law are admissible and will not be excluded as hearsay unless the sources of information or other circumstances indicate lack of trustworthiness. It should be noted that "[a]lthough the Federal rule speaks only of the admissibility of investigatory reports containing factual findings, the Supreme Court of the United States has interpreted the rule broadly to permit opinions and conclusions contained in such reports" (Kaiser v Metropolitan Transit Authority, 170 Misc. 2d 321, 325, citing Beech Aircraft Corp. v Rainey, 488 U.S. 153, 102 L. Ed. 2d 445, 109 S. Ct. 439 [1988]). "The touchstone for admissibility, the Court reasoned, should not be an arbitrary distinction between 'facts' and 'opinion,' but an analysis of whether the particular portion of the report in question, or the report as a whole, is trustworthy" (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4520:3, p. 246, citing Beech Aircraft, 488 U.S. at 167 n. 11). At the very least this document falls within the common law public documents exception to the rule against hearsay (see Kozlowski v City of Amsterdam, 111 A.D.2d 476, 478, 488 N.Y.S.2d 862 [1985], citing Sklar, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4520, p. 480, and Richardson on Evidence 342, 346, at 308-309 [Prince 10th ed.]) and worthy of consideration. On a previous motion the Respondents asserted that they were unable to cross-examine the Comptrollers report or any of the unidentified persons who were apparently interviewed in

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connection with it. (Paragraph 37 of the affidavit of Timothy Hoover dated September 2, 2011). However, even in criminal cases, where there is a specific Constitutional Right to Confrontation under the Sixth Amendment of the U.S. Constitution it has been long established that The right of an accused in a criminal action to be confronted by the witnesses who testify against him, is not violated by the introduction of so-called public documents or official records required to be kept. ( Heike v. United States, 192 F. 83, 94, 95, affd. 227 U.S. 131; Commonwealth v. Slavski, 245 Mass. 405, 414, 415, 417; People v. Reese [1932], 258 N. Y. 89, 96; People v. Corey, 157 N. Y. 332; 5 Wigmore on Evidence, 1398, pp. 136, 141, 142; Richardson on Evidence [6th ed.], 615, 616, 646, 647.)" People ex rel. Katz v. Jones, 10 Misc. 2d 1067, 1074 (N.Y. Magis. Ct. 1958). The credibility of a government report and the weight attached to it are matters to be decided by the trier of fact. Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d Cir. 1986) (citing Rosario v. Amalgamated Ladies Garment Cutters' Union, 605 F.2d 1228, 1251 (2d Cir. 1979), cert. denied, 446 U.S. 919, 64 L. Ed. 2d 273, 100 S. Ct. 1853 (1980)). The Supreme Court has observed that "the admission of a report containing 'conclusions' is subject to the ultimate safeguard -- the opponent's right [at trial] to present evidence tending to contradict or diminish the weight of those conclusions." Beech Aircraft v. Rainey, 488 U.S. 153, 109 S. Ct. 439, 449, 102 L. Ed. 2d 445 (1988). See, e.g., United States v. Hudson, 884 F.2d 1016, 1022-23 (7th Cir. 1989) (Congress did not intend to allow reports admitted under 803(8)(C) to escape rigorous scrutiny; such scrutiny serves policy favoring admission and retains desirability of careful scrutinization of reliability) (citations omitted); Ellis v. International Playtex, Inc., 745 F.2d 292, 303 (4th Cir. 1984) (same). In the case at bar Respondents knew in advance of the hearing that Petitioner intended to offer the State

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Comptroller's Report into evidence. This knowledge is evidenced by the fact that it was annexed to the Verified Petition as Exhibit 1 combined with Petitioners motion for a subpoena duces tecum to obtain it from the Office of the State Comptroller (See this Courts order dated June 10, 2011) and the subsequent stipulation as to its authenticity (Tr. Page 26 line 17 to Page 27 line 13), but failed to introduce any such evidence. The Respondents failed to introduce documentary or testimonial evidence that would negate or diminish the weight of the conclusions of the State Comptrollers Report or its factual findings. The Respondents also failed to introduce evidence that what is reported in the State Comptrollers Report did not occur during their respective terms of office. Therefore, an inference should be drawn that no such evidence exists and the strongest inference should be drawn against them that the State Comptrollers Report permits. Additionally the State Comptroller's Report contains written statements made by the Respondents and is admissible against them. See: People v. Caban, 5 N.Y.3d 143, 151 (N.Y. 2005) ("Plainly, defendant's own statements could be received in evidence as party admissions (see People v Chico, 90 N.Y.2d 585, 589, 687 N.E.2d 1288, 665 N.Y.S.2d 5 [1997]; Reed v McCord, 160 NY 330, 341, 54 N.E. 737 [1899 v McCord, 160 NY 330, 341, 54 N.E. 737 [1899] ["admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made"]; Prince, Richardson on Evidence 8-201, at 510 [Farrell 11th ed] [defining an admission as "an act or declaration of a party . . . which constitutes evidence against the party at trial"])."). Within these written statements both Respondents made tacit admissions and at time outright admissions as detailed below. The rule is settled that such accusatory statements, not denied, may be admitted against the one accused, as admissions, but only when the accusation was "fully known and fully understood" by

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defendant ( People v. Koerner, 154 N.Y. 355, 374), and when defendant was "at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent" ( People v. Conrow, 200 N.Y. 356, 367). Respondent Piotrowski is an attorney duly admitted to practice before the Courts of the State of New York since 1987 and served as a town justice in the West Seneca Town Court for 16 years ( 35 of Respondent Piotrowskis Verified Answer) Respondent Bielecki is a certified public accountant and has been practicing public accounting since 1977 and is a member of the New York Society of Certified Public Accountants and the American Institute of Certified Public Accountants ( 34 of Respondent Bieleckis Verified Answer). Respondent Bielecki is also employed as a partner in the accounting firm of Schunk, Wilson & Company (Tr. Page 18 lines 1 3 ). Respondent Bielecki also failed to properly audit claims prior to the Respondent Piotrowski paying them. The State Comptroller found that The Comptroller also did not prepare an abstract of audited claims for the Town Supervisor; therefore, proper authorization was not obtained prior to printing and disbursing the checks for payment. Although the Comptroller initials the claims indicating his audit, he stated that, in some cases, checks are printed and signed prior to his audit, which could result in a circumvention of the audit of claims requirement. (Page 9, paragraph 3, of the State Comptroller's Report). Despite this finding neither Respondent Bielecki nor Respondent Piotrowski dispute it in their respective responses to the State Comptrollers Report and this is an admission of a violation of Town Law 119, 125. In a conclusory and self-serving fashion Respondent Bielecki in paragraph 11 of his Verified Answer asserts that he has always submitted proof of auditing claims. However, he fails to

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state whether or not the proof was submitted before or after the Supervisor paid out on the claim. Respondent Bielecki also does not submit any documentary evidence to support his assertion in paragraph 11 of his Verified Answer. Additionally, in denying this allegation Respondent Bielecki points to an apparent audit of WNY Americorps by the Inspector General that purportedly found no fault with any improper expenditures, but the question is whether or not Respondent Bielecki was in compliance with State Law that governs his duties and powers the Inspector Generals findings under federal law is irrelevant. Respondent Piotrowski merely denies this allegation in paragraph 2 of this Verified Answer. Respondent Bielecki testified that he only started preparing an abstract of claims after the State Comptrollers Report was issued (Tr. Page 21 lines 6 12). Nowhere in Respondent Piotrowskis response to the audit finding does he dispute that he permitted checks to be printed and disbursed without proper authorization and this constitutes an admission on his part. Respondent Piotrowski did not require Respondent Bielecki to prepare an abstract of the audited claims as required by law due to the fact that Respondent Bielecki testified that he did not begin to prepare an abstract of audited claims until after the State Comptrollers report (Tr. Page 21 lines 6 12). Respondent Piotrowski between January 1, 2008 through sometime in August 2010 allowed checks to be printed and disbursed in the absence of such abstract of audited claims. Therefore Respondent Piotrowski allowed a break-down in the intricate checks and balance scheme embodied in Article 8 of the Town Law. Respondent Piotrowski stated that there was to be a review of the Comptrollers office at the January 14, 2008 meeting of the West Seneca Town Board (second last paragraph of page 8 of Exhibit A of Petitioners Verified Reply). While Respondent Bielecki testified I dont know of any formal review, no. I mean, the supervisor is always going through and asking

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questions and determining what were doing and how were doing that, I dont know if you would count that as a review but, yes, that was ongoing (Tr. Page 22 lines 8 12 ). Yet despite this ongoing questioning Respondent Piotrowski failed to detect and attempt to address the fundamental breakdown in the intricate checks and balance system as set forth in Article 8 of the Town Law. According to the State Comptroller's Report, Respondent Bielecki did not properly audit claims presented to him not just by WNY Americorps, but from any other department as well. Specifically the State Comptroller's Report states that The Comptroller did not perform a proper audit of claims submitted by the Executive Director, or those he supervised, for WNY AmeriCorps or Youth Bureau activity. Such claims generally lacked any supporting documentation, such as invoices or receipts to identify the nature of the charges. The Comptroller stated that the financial activity and account coding is based on the Executive Directors judgment. He also stated that he did not require any Town departments to submit documentation supporting credit card claims. Instead he relies, without any verification, on the respective department heads to retain this documentation for review, even though it is the responsibility of the Comptroller to audit and approve these claims. We found no evidence that any review of supporting documentation had been performed by the Comptroller. (Page 9, paragraph 2, of the State Comptroller's Report). As much as Respondent Bielecki, while not disputing that this violation of Town Law 119 did in fact occur, points to the lack of cooperation from the Executive Director of WNY Americorps as an excuse why proper documentation was not obtained prior to payment of claims (Page 29, paragraph 2, of the State Comptroller's Report). Interestingly, at no time did he invoke his power of subpoena under Town Law 119 to obtain the required supporting documentation for the claims presented to

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him for payment nor does he explain why he did not. Even assuming the failure of WNY Americorps to cooperate with Respondent Bielecki excuses the payment of claims in the absence of proper supporting documentation and audit it does not explain his failure to require this documentation from the other department heads as the State Comptrollers report notes on page 31 note 2 of the State Comptroller's Report. Respondent Bielecki in his position as Town Comptroller was, and is, required to keep an accurate and complete account of the receipt and disbursement of all moneys which shall come into his hands by virtue of his office, in books of account in the form prescribed by the state department of audit and control for all expenditures under the highway law and in books of account provided by the town for all other expenditures. Such books of account shall be public records, open and available for inspection at all reasonable hours of the day, and, upon the expiration of his term, shall be filed in the office of the town clerk. (Town Law 29(4)). The State Comptrollers report found that the "Financial activity for the Towns Youth Bureau, WNY AmeriCorps and grant programs was improperly accounted for in the general, special grant and trust and agency funds. During our audit period, the Comptroller recorded related expenditures of $862,900 in the general fund and $7.6 million in the special grant fund. In addition he recorded disbursements related to these programs totaling $2.8 million10 in the trust and agency fund. The Towns external auditor subsequently analyzed and reclassified cash receipt and disbursement activity recorded in the trust and agency fund as revenues and expenditures in other Town funds. However, the Comptroller did not adjust the Towns accounting records to reflect these significant reclassifications. Therefore, the Towns accounting records are inaccurate and do not agree with the audited financial statements. Moreover, the

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Board cannot rely on the Comptrollers accounting records to make informed financial decisions." (Page 10, paragraph 3, of the State Comptroller's Report). According to this report The Executive Director of WNY Americorps and employees under his supervision would make deposits in various accounts and Respondent Bielecki did not determine the source of these moneys to properly account for this activity as it occurred. Rather, after the deposits were made, the Executive Director or other employees under his supervision provided a deposit slip to the Comptroller and indicated what fund (e.g., special grant fund or trust and agency fund) to record the activity in. During our audit period approximately $2.5 million was recorded as cash receipts in the trust and agency fund for this activity. This was composed of program income, donations, proceeds from fundraising, other grants and a transfer of $283,796 from the general fund. The transfer (fn8 The Town Board approved this transfer in October 2008. However, the Town accounting records and the audited financial statements reflected this transaction as having occurred in 2007.) in effect is the amount borne by Town taxpayers to address salary and other cost allocation errors that presumably occurred in previous years between the Town Youth Bureau and WNY AmeriCorps. Because these transactions were recorded in the trust and agency fund, no revenues or expenditures were recognized to properly account for grant activity at the time these transactions occurred. (Page 10, paragraph 4, of the State Comptroller's Report). The State Comptroller found that Respondent Bielecki also improperly approved claims, generally without any supporting documentation, which were disbursed from the trust and agency fund. These disbursements totaled $1.1 million for the period January 1, 2006 through August 14, 2009. The Executive Director and certain other employees under his supervision stated that they decided where disbursements should be charged by the Comptroller in the

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Towns accounting records. If they believed the disbursement was grant related and would be allowed, (Federal grant awards are subject to Federal audit. If the Federal auditors identify disallowances (expenditures that are not chargeable to the grant) the Grantee (in this case the Town) will not be reimbursed.) they would have the Comptroller account for it in the special grant fund. If they believed the disbursement was related to Town operations, they would have the Comptroller charge it to Youth Bureau appropriations in the general fund. If neither of these conditions could be met, they had the Comptroller account for the disbursement in the trust and agency fund. As such, the Comptroller allowed employees to dictate the use of this money and how it should be recorded. (Page 11, paragraph 2, of the State Comptroller's Report). The State Comptroller also found that Respondent Bielecki did not properly record inter-fund activity associated with transfers made to the special grant fund from other Town funds. (Page 11, paragraph 3, of the State Comptroller's Report). The State Comptrollers Office also found that Respondent Bielecki failed to file monthly revenue and expenditure reports with the Town Board (Page 13, paragraph 3, of the State Comptroller's Report). According to the State Comptrollers report Respondent Bielecki indicated that he was unaware of this requirement (See Town Law 125(2)). However, in paragraph 12 of his Verified Answer he states that he has always provided these reports to the Town Board and in September 2010 they were merely formally presented to the Town Board at the meeting. Respondent Bielecki has not provided any documentary evidence to support this self-serving denial. Furthermore, if Respondent Bieleckis position on this issue is correct then why was this not countered in his response to the State Comptrollers report? In fact what he did say on this issue was The Comptroller[]s office provides monthly printouts to all department heads and has provided all Town Board members with specific financial documents when

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requested by them. (Page 28, paragraph 3, of Exhibit the State Comptroller's Report). The State Comptrollers office rejected this response on page 31 note 5 of the State Comptroller's Report and in any event Respondent Bielecki was required to provide the monthly reports to the Town Board each month not just when they were requested. Respondent Bielecki ultimately testified that these revenue and expenditure reports were not given to town board members prior to the State Comptrollers report although they were available upon request. (Tr. Page 21 lines 13 25). However, the law requires that it be provided to the Town Board not just made available to them upon request. The State Comptrollers Office also found that Respondent Bielecki did not perform an annual audit of the records of Town officials and employees that received or disbursed moneys on behalf of the Town as required by Town Law. Respondent Bielecki testified that this is done by an outside independent auditor and there is no specific time when it is to be completed (Tr. Page 19 line 16 through Page 20 Line 9). In towns which have a town comptroller, it is his responsibility to examine the accounts of town officers and employees in accordance with Section 123 of the Town Law (Town Law 34; 1978 Op St Compt File #916). Even assuming that it was proper for this to be delegated to an outside/third-party auditor it must be completed within 60 days of the close of the towns fiscal year (Town Law 123 ). The fiscal year for the Town of West Seneca ends on December 31st of each year (Town Law 101). The State Comptrollers report states that "In the March 2, 2009 Board minutes, a Board member questioned the Comptroller regarding annual audits. The Comptroller responded that he had not performed them." (Footnote 16 on Page 14, of the State Comptroller's Report). This report stated that The failure to perform an annual audit reduces accountability over Town assets and increases the risk that errors and irregularities will not be detected and corrected. (Paragraph 1

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on Page 14, of the State Comptroller's Report). This is corroborated by the minutes of the Town Board Meeting held on May 2, 2009 (second last paragraph of page 17 of Exhibit B of Petitioners Verified Reply). Respondent Piotrowski as the Town Supervisor, along with other administrative staff, is responsible for the administration and supervision of the day-to-day operations of the Town and is the presiding officer of the Town Board (Town Law 29 & 63). Respondent Piotrowski, as well as others, undertook a department by department review that began with the Town Attorneys Office and the Town Comptrollers Office beginning in January 2008 in order to in an effort to make those departments more efficient and effective. (Exhibit 2 attached to the Verified Petition, page 10, last paragraph). Respondent Piotrowski was prohibited by Town Law 125 from paying out any town money except upon the warrant, order or draft of the town comptroller, after audit and allowance thereof. That despite this provision of law Respondent Piotrowski disbursed funds in the absence of an abstract prepared by Respondent Bielecki as required by Town Law 119 (When a claim has been audited by the town comptroller, he shall file the same in numerical order as a public record in his office and prepare an abstract of the audited claims specifying the number of the claim, the name of the claimant, the amount allowed and the fund and appropriation account chargeable therewith and such other information as may be deemed necessary or essential, directed to the supervisor of the town, authorizing and directing him to pay to the claimant the amount allowed upon his claim..). Respondent Bielecki testified that he only started preparing an abstract of claims after the State Comptrollers report was issued (Tr. Page 21 lines 6 12). The State Comptroller found that The Comptroller also did not prepare an abstract of audited claims for the Town Supervisor; therefore, proper authorization

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was not obtained prior to printing and disbursing the checks for payment. Although the Comptroller initials the claims indicating his audit, he stated that, in some cases, checks are printed and signed prior to his audit, which could result in a circumvention of the audit of claims requirement. (Page 9, paragraph 3, of the State Comptroller's Report). Nowhere in Respondent Piotrowskis response to the audit finding does he dispute that he permitted checks to be printed and disbursed without proper authorization in violation of Town Law 125 and this constitutes an admission on his part. Respondent Piotrowski did not require Respondent Bielecki to prepare an abstract of the audited claims as required by law due to the fact that Respondent Bielecki testified that he did not begin to prepare an abstract of audited claims until after the State Comptrollers report (Tr. Page 21 lines 6 12). Respondent Piotrowski between January 1, 2008 through sometime in August 2010 allowed checks to be printed and disbursed in the absence of such abstract of audited claims. Therefore Respondent Piotrowski allowed a break-down in the intricate checks and balance scheme embodied in Article 8 of the Town Law. Neither Respondents presented any evidence or testified as to how these above acts were not a result of gross dereliction of duty and pattern of routine disregard of mandates of the law and procedure despite their years of experience in their respective fields. Surely Respondent Piotrowski upon taking office would have, given his experience as an attorney and town justice, would have looked into what were his legal obligations of taking office and would have reviewed Town Law 119, 125 among other provisions of the Town Law. Had Respondent Piotrowski done so he could have properly guided Respondent Bielecki upon discovering that what he was producing was not sufficient for him to perform his statutory duties.

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EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENT PIOTROWSKI

ON THE SECOND CAUSE OF ACTION ALLEGED IN THE VERIFIED PETITION

Penal Law 200.45 provides A person is guilty of bribe giving for public office when he confers, or offers or agrees to confer, any money or other property upon a public servant or a party officer upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office. Penal Law 200.00 provides A person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced. The parties stipulated that if Mrs. Meegan were to testify that she would testify that she abstained from voting on her husband Michael Meegans promotion (Tr. Page 43 line 25 through page 44 line 14). The parties further stipulated that there were discussion between Mrs. Meegan and Mr. Piotrowski regarding the promotion of Michael Meegan to working crew chief and the appointment of Joe Lorigo to town prosecutor and in the end Michael Meegan was not promoted to working crew chief and Joe Lorigo was not appointed town prosecutor (Tr. Page 45 Line 14 through Page 46 Line 3). Council Member Dale Clarke testified that he stated that I would tell the people out in front that a deal was being made to vote for Michael Meegan in place of Joey Lorigo getting town prosecutor. (Tr. Page 12 lines 21 24 ). That Mr. Piotrowski was present when he made that statement and Mr. Piotrowski did not make any statement or take any actions in response to hearing that statement. (Tr. Page 13 lines 5 7 ). This constitutes a tacit admission on the part

of Respondent Piotrowski that there was a deal being made to Mrs. Meegan for him to vote for
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Michael Meegan in exchange for Mrs. Meegans vote to appoint Joe Lorigo Town Prosecutor. This is corroborated by the Minutes of the February 7, 2011 meeting of the West Seneca Town Board (Exhibit E page 11 attached to the Verified Reply). When confronted with this by Charlie Specht, a reporter for The Buffalo News, Respondent Piotrowski made the statement These kinds of deal are made every day, in every town, every year. And Respondent Piotrowski went on to state The deals are always made. Is it right that its made? Yeah, I dont see any problem, its not illegal. I want something and Im asking for it. (Tr. Page 39 line 1 - 12 ). Respondent Piotrowski made the following statement to Charlie Specht: If youre going to take this one vote that I did and not look at the other 3,000 votes that Ive taken for the residents to save money, to save expenses, to reduce taxes, to try to consolidate departments . . . I think all the other things far outweigh any negatives someone may have for me making this type of decision. (Tr. Page 39 lines 13 22 ). Notably, Respondent Piotrowski did not immediately move to appoint anyone else to the position of working crew chief until the March 7, 2011 meeting. (Tr. Page 41 line 23 through page 42 line 6). This is corroborated by the Minutes of the February 7, 2011 and March 7, 2011 meetings of the West Seneca Town Board (Exhibit E page 11 and Exhibit F pages 3 and 4 attached to the Verified Reply). This leads one to the conclusion that if Respondent Piotrowski had moved to appoint someone else to the position of working crew chief on February 7, 2011 that he would lose the leverage he had in order to obtain an appointment to town prosecutor for Joe Lorigo. Because Mrs. Meegan would financially benefit on the vote to promote her husband she was required to abstain from voting on that question (General Municipal Law Article 18).

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Respondent Piotrowskis offer to Mrs. Meegan to vote for her husbands promotion in exchange for her vote for the appoint Joe Lorigo to the position of town prosecutor constitutes a bribe offer within the contemplation of Penal Law 200.00, 200.45. Counsel for Respondent Piotrowski has conceded that Respondent Piotrowskis vote in favor of Council member Sheila Meegans husband would constitute a financial benefit to her. (Paragraph 24 of the affidavit of Timothy Hoover dated September 2, 2011). Respondent Piotrowski admitted in 24 of his Verified Answer that she was personally interested in her husbands promotion. The evidence is clear Respondent Piotrowski offered to confer a financial benefit to a public officer, Councilmember Sheila Meegan, in the form of his vote in favor of her husband Michael Meegans promotion, a vote that she could not participate in, which would provide a financial benefit to her in exchange for her vote for Joseph Lorigo as Town Prosecutor. The parties stipulated that if Mrs. Meegan were to testify that she would testify that she abstained from voting on her husband Michael Meegans promotion (Tr. Page 43 line 25 through page 44 line 14). The parties further stipulated that there were discussion between Mrs. Meegan and Mr. Piotrowski regarding the promotion of Michael Meegan to working crew chief and the appointment of Joe Lorigo to town prosecutor and in the end Michael Meegan was not promoted to working crew chief and Joe Lorigo was not appointed town prosecutor (Tr. Page 45 Line 14 through Page 46 Line 3). Council Member Dale Clarke testified that he stated that I would tell the people out in front that a deal was being made to vote for Michael Meegan in place of Joey Lorigo getting town prosecutor. (Tr. Page 12 lines 21 24 ). Although Mr. Clarke testified that the Town Board went into an executive session that lasted 30 to 45 minutes (Tr. Page 11 lines 13 18) it

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was actually approximately 1 hour 55 minutes according to the minutes of the West Seneca Town Board meeting of February 7, 2011 (Page 10 of Exhibit E attached to the Verified Reply). That Mr. Piotrowski was present when he made that statement and Mr. Piotrowski did not make any statement or take any actions in response to hearing that statement. (Tr. Page 13 lines 5 7 ). Mr. Clarke did in fact make such a statement to the public and Respondent Piotrowski did not make any statement to dispute it during the open session after he made a motion to appoint Mike Meegan to working crew chief and it died for lack of a second (Exhibit E page 11 attached to the Verified Reply). These constitute tacit admissions on the part of Respondent Piotrowski that there was a deal being made to Mrs. Meegan for him to vote for Michael Meegan in exchange for Mrs. Meegans vote to appoint Joe Lorigo Town Prosecutor. When confronted with this by Charlie Specht, a reporter for The Buffalo News, Respondent Piotrowski made the statement These kinds of deal are made every day, in every town, every year. And Respondent Piotrowski went on to state The deals are always made. Is it right that its made? Yeah, I dont see any problem, its not illegal. I want something and Im asking for it. (Tr. Page 39 line 1 - 12 ). Respondent Piotrowski made the following statement to Charlie Specht: If youre going to take this one vote that I did and not look at the other 3,000 votes that Ive taken for the residents to save money, to save expenses, to reduce taxes, to try to consolidate departments . . . I think all the other things far outweigh any negatives someone may have for me making this type of decision. (Tr. Page 39 lines 13 22 ). Interestingly at no time did Respondent Piotrowski testify that he did not offer to vote for Michael Meegans promotion in exchange for Mrs. Meegans vote for Joseph Lorigo nor did he testify as to the other parts of the conversation he had with the news reporter Charlie Specht

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despite his attorney having an opportunity to elicit such testimony (Tr. Page 42 lines 7 15 ). One can reasonably conclude that this was so because it would not have helped him, but rather further incriminate him and an adverse inference should be drawn against him for this failure to testify and present evidence. Notably, Respondent Piotrowski did not immediately move to appoint anyone else to the position of working crew chief until the March 7, 2011 meeting. (Tr. Page 41 line 23 through page 42 line 6). This is corroborated by the Minutes of the February 7, 2011 and March 7, 2011 meetings of the West Seneca Town Board (Exhibit E page 11 and Exhibit F pages 3 and 4 attached to the Verified Reply). At no time did Respondent Piotrowski offer evidence to explain this delay in nominating someone other than Michael Meegan to the position of working crew chief. This leads one to the conclusion that if Respondent Piotrowski had moved to appoint someone else to the position of working crew chief on February 7, 2011 that he would lose the leverage he had over Council Member Meegan in order to obtain an appointment to town prosecutor for Joe Lorigo. Because Mrs. Meegan would financially benefit on the vote to promote her husband she was required to abstain from voting on that question (General Municipal Law Article 18). Respondent Piotrowskis offer to Mrs. Meegan to vote for her husbands promotion in exchange for her vote for the appoint Joe Lorigo to the position of town prosecutor constitutes a bribe offer within the contemplation of Penal Law 200.00, 200.45. For this act of misconduct alone Respondent Piotrowski should be removed from office.

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RESPONDENTS ALLEGED DEFENSES TO THIS PROCEEDING

Respondents allege that the Petition is barred by the doctrine of laches (Respondent Bieleckis Fourth Defense and Respondent Piotrowskis Fifth Defense asserted in their respective Verified Answers). "The defense of laches requires both delay in bringing an action and a showing of prejudice to the adverse party" (Summers v City of Rochester, 60 AD3d 1271, 1273, 875 N.Y.S.2d 658) and, here, Respondents have failed to plead, let alone demonstrate an ability to prove, that they were prejudiced by any delay (see Matter of Mergenhagen, 50 AD3d 1486, 1487, 856 N.Y.S.2d 389). The party asserting this defense must establish prejudice by reason of a change in circumstances making it inequitable to grant the relief being sought. The party interposing a laches defense must establish an injury, change in position, loss of evidence or prejudice resulting from the delay. Reed v. Reed, 195 A.D.2d 451, 599 N.Y.S.2d 847 (2nd Dept. 1993); and Thurmond v. Thurmond, 155 A.D.2d 527, 547 N.Y.S.2d 385 (2nd Dept. 1989). The Respondents have failed to present any evidence establishing any of these elements. Despite the upcoming election for West Seneca Town Supervisor, if Respondent Piotrowski is reelected he is still subject to removal for these acts. "It is well settled that a public official may be removed from office for acts of malfeasance committed during a prior term of office (see, Matter of Phillips v Dally, 143 AD2d 273; Matter of Abare v Hatch, 21 AD2d 84, 86)." West v. Grant, 243 A.D.2d 815, 817 (N.Y. App. Div. 3d Dep't 1997). In the event Respondent Piotrowskis is reelected it will not act as a bar to his removal in this instance because the allegations raised in this proceeding have not been ruled upon as being true as of yet nor admitted to be true by Respondent Piotrowski before the election and he has

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steadfastly maintained that this was a baseless and frivolous proceeding. Consequently the "condonation" or "full disclosure" principle is inapplicable in this proceeding (Application of Baker, 87 Misc. 2d 592, 595). On the other hand if Respondent Piotrowski is not reelected and this matter comes before the Court after January 1, 2012 it will be rendered moot as against him (De Falco v. Doetsch, 208 A.D.2d 1047, 1048). Similarly if Respondent Bielecki is not re-appointed to the position of Town Comptroller in January 2012 this proceeding will be rendered moot as against him. The remaining alleged defenses do not act as a bar to this proceeding nor do they act to mitigate Respondents respective culpability and should be dismissed for the reasons set forth in Petitioners Verified Reply. For example Respondent Piotrowski points to the fact that I have not commenced a similar proceeding against Council Member Sheila Meegan as somehow negating his culpability in this matter. Respondent Piotrowski contends that Council Member Meegan engaged in some type of misconduct by seconding the appointment of her husband to the position of working crew chief at the March 7, 2011. Even he did not see anything wrong with this at that time because as the presiding officer he did not rule that motion out of order on that, or any other, ground (Town Law 63; Town Bd. v. Hallock, 2 Misc. 3d 826). However, even if there was some wrong committed by Council Member Meegan it would not negate or mitigate Respondent Piotrowskis culpability for his acts and omissions as detailed above.

CONCLUSION
Removal is a "drastic remedy" reserved for "'unscrupulous conduct or gross dereliction of duty' or [conduct that] . . . 'connote[s] a pattern of misconduct and abuse of authority'" (Matter of

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Chandler v Weir, 30 AD3d 795, 796, 817 NYS2d 194 [2006] [citations omitted]; see Matter of McCarthy v Sanford, 24 AD3d 1168, 1168-1169, 807 NYS2d 431 [2005]). Removal is appropriate in this case. On the first cause of action asserted against Respondents Piotrowski and Bielecki. In Williams v. Travis, 194 A.D.2d 969 (N.Y. App. Div. 3d Dep't 1993) it was established that the "respondent had failed to attend the last 27 meetings of the board, had failed either directly or indirectly to participate in the conduct of the affairs of the board, and refuses to resign his office as commissioner." The Court removed the Respondent in that case finding "The uncontroverted allegations in the pleadings demonstrate that respondent has been grossly derelict in his duties. Such dereliction amounts to misconduct warranting his removal." It should also be noted that it is the opinion of the State Comptroller that "[u]nder this section a supervisor may be removed from office for willfully refusing to perform the duties of his office as required by law (13 Opns St Comp, 1957, p 250). Although administrative oversights in the performance of one's duties would not warrant removal, intentional disregard of official responsibilities would. (In re Pisciotta, 41 AD2d 949, 343 NYS2d 992 [1973]). " 1982 N.Y. Comp. LEXIS 479; 1982 N.Y. St. Comp. 313. Also in the case of Gumo v. Canzoneri, 263 A.D.2d 456 the Court held that a pattern of routine disregard of mandates of the law and procedure is suggestive of a gross dereliction or intentional disregard of duties that could justify removal. An act of intentional wrongdoing, moral turpitude or violation of public trust is sufficient to support removal of Respondent Piotrowski on the second cause of action asserted against him (Smith v. Perlman, 105 A.D.2d 878). In this case the evidence establishes that there was a complete disregard by the Respondents of their respective duties under Town Law 119, 123, 125 at least for the period

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covering January 1, 2008 through August 2010 that resulted in the breakdown in the financial checks and balances established under Article 8 of the Town Law. It has also been established that Respondent Piotrowski committed an act of misconduct as proscribed by the Penal Law as detailed above. Based on the above the referees findings of fact as found in 1 & 2 on Page 3 of the Referees report should be confirmed and the finding of fact as found in 3 on Page 3 through Page 4 should be rejected and Respondent Bielecki and/or Respondent Piotrowski should be removed from office. DATED: September 22, 2011 Buffalo, New York Yours, etc.

____________________________ Daniel T. Warren Petitioner, Pro Se 836 Indian Church Road West Seneca, New York 14224

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