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{W0166250.1}

STATE OF NEW YORKSUPREME COURT COUNTY OF ONONDAGA

In the Matter of

FRED WEISSKOPF, LINDA WEISSKOPF, CHERYLLIPTAK, CHARLES CARTER, JR., WALTER HUBBS,ROCHELLE HUBBS, MAUREEN J. DOYLE, MICHAEL J.DOYLE, and DENNIS PELMEAR,

Petitioners,

v.

THE BOARD OF EDUCATION OF THE JORDAN-ELBRIDGE CENTRAL SCHOOL DISTRICT, MARILYN J.

DOMINICK, Superintendent of Schools for the Jordan-Elbridge Central School District, and WILLIAM SPECK, asprospective Interim Superintendent of Schools for the Jordan-Elbridge Central School District

Respondents,

for relief pursuant to Civil Practice Laws and Rules, Article 78and Declaratory Judgment pursuant to CPLR 3001.

Index No.: ___________

RJI No.: _____________

Hon.

MEMORANDUM OF LAWON BEHALF OF PETITIONER

RESPECTFULLY SUBMITTED,

Dennis G. OHara, Esq.OHARA, OCONNELL & CIOTOLIAttorneys for Petitioner7207 East Genesee StreetFayetteville, New York 13066-1262(315) 451-3810


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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................................ i

TABLE OF AUTHORITIES................................................................................................................... ii

NATURE OF THE CASE .......................................................................................................................1

Factual Background...................................................................................................................1

Severance Agreement and Board Resolutions are Void as a Matter of Law .............................2

ARGUMENT .......................................................................................................................................4

POINT I

PETITIONERS HAVE STANDING AS THIS SUIT SEEKS TOVINDICATE A PUBLIC INTEREST RATHER THAN ENFORCE APRIVATE RIGHT ...............................................................................................................4

POINT II

THE SEVERANCE AGREEMENT CONSTITUTES AN ILLEGALGIFT OF PUBLIC FUNDS .................................................................................................5

POINT III

THERE IS NO VALID CONTRACT FOR THE RESIGNATION OF

DOMINICK AS SUPERINTENDENT ...............................................................................7

CONCLUSION...................................................................................................................................10


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{W0166250.1} ii

TABLE OF AUTHORITIES

CASES PAGE(S)

Appeal of Bd. of Educ. of the Plainedge Union Free School Dist.,Decision of Comm. of Educ. No. 14,644 (Sept. 25, 2001) ........................................................9

Application of Karpen v. Cold Spring Harbor Cent. Sch.,Decision of Comm. of Educ. No. 14,185 (July 30, 1999) .....................................................8, 9

Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs. v. Sweeney ,89 N.Y.2d 395 (1996) ................................................................................................................4

Perrenod v. Liberty Bd. of Educ., 223 A.D.2d 870 (3d Dept. 1996) ...........................................5, 7

Petrella v. Siegel, 136 A.D.2d 81 (2d Dept. 1988), affdon other grounds,73 N.Y.2d 846 (1988) ............................................................................................................7, 8

Rampello v. East Irondequoit Cent. Sch. Dist.,236 A.D.2d 797 (4th Dept. 1997) ....................................................................................passim

Salles v. Regent Intl Hotels, 58 N.Y.2d 206 (1983) .....................................................................10

Schulz v. Cobleskill-Richmondville Cent. Sch. Dist. Bd. of Educ.,197 A.D.2d 247 (3d Dept. 1994) .......................................................................................4, 5, 7

Weimer v. Bd. of Educ., 52 N.Y.2d 148 (1981) ...............................................................................4

STATUTES

Educ. Law 2(14)............................................................................................................................8

Educ. Law 1711 ............................................................................................................................8

General Municipal Law 51 ...........................................................................................................4

N.Y. Const. Art. VIII 1 .............................................................................................................1, 4

Pub. Off. Law Art. 7 [Open Meetings Law] ....................................................................................6

Pub. Off. Law 31(2) ..................................................................................................................8, 9


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{W0166250.1}1

NATURE OF THE CASE

This is a combined Article 78 proceeding and request for declaratory judgment pursuant

to CPLR 3001, in which citizen taxpayers of the Jordan-Elbridge Central School District (the

District) seek declarations of this Court that an agreement (the Severance Agreement;

Exhibit G to the petition) between the respondent Board of Education (the Board) and

respondent Marilyn Dominick (Dominick) is null and void for several reasons, and that the

previous employment agreement (the 2007 Agreement; Exhibit A to the petition) remains in

full force and effect.

Factual Background

At some point in the late 2009 or early 2010, officers of the Board and the Boards

attorney, Danny Mevec (Mevec), approached Dominick to request that she forgo the remaining

term of her employment contract with the District. [See Ex. G; compare Exs.H and F at

3]. The 2007 Agreement does not expire until June 30, 2012.

After months of pressure, harassment, threats, and badgering by Board President Mary

Alley (Alley), Dominick ultimately acquiesced. [See Exs. G and H]. Further negotiations

between Dominicks attorney and Mevec1 resulted in a resignation letter from Dominick, dated

April 7, 2010, and the signed Severance Agreement dated May 5, 2010. [See Ex. D and G].

On May 5, 2010, the Board adopted a resolution to accept Dominicks resignation and a

second resolution to authorize the Board President, Mary Alley, to negotiate and sign an

1Although Mevec was retained to represent the Board, it seems clear that he was acting at

the individual direction of Alley and, perhaps, others. There was no action by the Board beforeMay 5, 2010 to authorize any Board member to seek or negotiate a severance agreement or thetermination of Superintendent Dominicks contract.


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{W0166250.1} 2

agreement for Superintendent of Schools, Marilyn J. Dominicks, retirement from the district,

effective November 1, 2010. [See Ex. B]. It is now clear, however, that the Severance

Agreement had been fully negotiated several months before the May 5, 2010 Board authorization

The Severance Agreement is Null and Void as a Matter of Law

Petitioners contend that the Severance Agreement is null and void for several reasons; the

primary one being that the payment of $82,444 as called for under that agreement would be an

unconstitutional gift of public funds under the circumstances of this case. See N.Y. Const. Art.

VIII 1. The payment of public funds to a retiring superintendent of schools that was not

provided for in the employment agreement pursuant to which service was rendered is

unconstitutional unless it is shown that such money is paid either as damages for breach of a

contractual obligation or in settlement of a contested claim. Ingram, et.al., v. Brd. of Ed. of

Union Free School District No. 1 of the Town of Hempstead, et.al. , 91 A.D.2d 1063 (Second

Dept. 1983). Stated differently, Dominick would not have been entitled to a lump-sum payout of

$82,444.00 under the terms of the 2007 Agreement. Thus, a payout to her in exchange for her

early resignation constitutes an unconstitutional gift of public funds. This fact renders both the

Severance Agreement and the purported resignation null and void.

While Dominick may have had a disagreement with some individual Board members

and/or with Mevec, there is absolutely no indication that she had any disagreement with the

Board that would justify the expenditure of $82,444.00 in public funds or deprive the District of

her services some twenty months earlier than the parties had initially bargained for.

Additional reasons why the Severance Agreement should be declared invalid are as

follows:


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{W0166250.1} 3

1. No Board AuthorizationThe Severance Agreement and letter of resignation were obtained through the unilateral

action of a few Board members acting without the authorization of the entire Board. The

Boards resolution of May 5, 2010 authorized future negotiations, and was not a retroactive

endorsement of what Alley had already done. There is no public Board resolution on record prior

to May 5, 2010 that purports to grant such authority to anyone. Thus, if any claim is made that

the full Board granted Alley authority to do what she did with respect to the Severance

Agreement, that authority had to have been granted in secret and behind closed doors. Any such

action would have violated the Open Meetings Law [See Pub. Off. Law 100-111], and should

be set aside on that basis alone.

2. Violation of Public Officers Law 31Dominicks purported resignation lettereffective as of November 1, 2010 is void in light

of section 31 of the Public Officers Law. Without a letter of resignation that was legally

effective as of November 1, 2010, there can be no consideration by Dominick to support the

purported Severance Agreement. This absence of consideration renders that agreement void as a

matter of law. The Boards resolution accepting Dominicks April 7th resignation effective

November 1, 2010 is equally defective as it is in violation of the same section of the Public

Officers Law.

3. Complete Failure of ConsiderationNeither the Board nor Dominick has provided, or is able to provide, the stated

consideration to support the Severance Agreement. Under the circumstances, the Boards

promise to pay Dominick $82,444 would be an unconstitutional gift of public funds, Moreover,


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{W0166250.1} 5

where petitioners seek the vindication of a public interest rather than a private right, notice of

claim provisions under Education or General Municipal Law do not apply. See Matter of

Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs. v. Sweeney, 89 N.Y.2d 395, 400-03

(1996); Rampello, 236 A.D.2d at 798. Ultimately, as petitioners have standing and seek to

vindicate a public interest, this Court should proceed to examine petitioners claims on their

merits.

POINT II

THE SEVERANCE AGREEMENT CONSTITUTESAN ILLEGAL GIFT OF PUBLIC FUNDS

Although the published decisions are few, they are unanimous in holding that the

payment of money to a retiring public employee constitutes an unconstitutional gift of public

funds in circumstances where the public entity had no obligation to pay the amount as a term or

condition of employment prior to approval of the payment. Perrenod v. Liberty Bd. of Educ.,

223 A.D.2d 870 (3d Dept. 1996); Rampello, 236 A.D.2d 797; Schulz, 197 A.D.2d 247.

In the event a contract providing for a retirement incentive includes terms and conditions

distinct and separate from the terms and conditions of the prior employment agreement, the

question the Court is whether the retirement agreement provides for a payment of public funds in

exchange for some service or to settle some legal obligation. See, e.g., Schulz, 197 A.D.2d 247

(where petitioners claimed a service contract was improperly awarded as a professional service

and, therefore, the payment of that contract constituted an unconstitutional gift of public funds,

the Court found a question of fact and remanded); see also, Rampello, 236 A.D.2d at 798.

The Fourth Departments decision inRampello is almost directly on point to the issues in

the instant proceeding. InRampello, the districts high school principal sent a letter of retirement


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{W0166250.1} 6

to the board of education which included an expressed understanding that the principal would

be awarded a payout of his accumulated sick days as an incentive. 236 A.D.2d at 797. A short

time later, the board held a special meeting, went into executive session to discuss personnel

issues, and then approved a resolution in open session authorizing the payment of $81,555 for

unused sick days. 236 A.D.2d at 797. Petitioners were taxpayers who brought suit alleging the

payout was an unconstitutional gift of public funds and that the board acted in violation of Open

Meetings Law [the OML]. Id.; see Pub. Off. Law Art. 7. The Court found that, since the prior

employment agreement between the board and the principal did not provide for a payout of

accumulated sick time, there was no legal obligation supporting the retirement incentive. Id.,

at 798. Additionally, the Court also found the respondent board violated the OML and

invalidated the Boards resolution on that ground.

The facts of this action are nearly identical to Rampello. Here, officers of the board

along with Mevec approached Superintendent Dominick at some point in late 2009 and/or early

2010 seeking to obtain her resignation, which was finally obtained on April 7, 2010 for a

retirement date of November 1, 2010. (See Verified Petition at 32-43; Ex. H). Prior to May

5, 2010, there is no resolution in any of the Boards public meeting minutes authorizing

individual board members to negotiate or request Dominicks early retirement from the district.

Therefore, individual board members negotiating with and attempting to secure Dominicks

resignation for their own personal reasons, were acting in excess of their statutory authority. On

the other hand, if the board officers actions in forcing the early retirement of Dominick were

authorized by the full Board, such authorization could only have been obtained in executive

session and, like inRampello, in violation of the OML.


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{W0166250.1} 7

Further, the severance agreement itself was signed on May 5, 2010. Logically, it must

have been negotiated prior to that date. As such, the negotiations and signing of the severance

agreement clearly took place prior to the Boards resolution on May 5, 2010 authorizing Alley

to negotiate and to sign that very same agreement. [See Ex. B; see also, Ex. F 2-5].

Again, like in Rampello, either Alley, and perhaps others, were acting ultra vires or the Board

improperly authorized the actions of its officers prior to May 5, 2010, in executive session, and

in violation of the OML. In either event, the Severance Agreement is null and void.

Even if we assume, arguendo, that the Court does not reach the issue of whether the

Board violated the OML and further finds that the Severance Agreement was technically

executed, the fact still remains that Dominicks retirement letter is dated April 7, 2010. The

Board approved a retirement incentive on May 5, 2010, based on a resignation to be effective

November 1, 2010. However, that resignation could not be delivered as a matter of law.

Clearly, there is no legal obligation supporting payment of $82,444 to Dominick, which on its

face constitutes an unconstitutional gift of public funds. Perrenod v. Liberty Bd. of Educ., 223

A.D.2d 871; Rampello, 236 A.D.2d at 798; Schulz, 197 A.D.2d 247.

POINT III

THERE IS NO VALID CONTRACT FOR THERETIREMENT OF DOMINICK AS SUPERINTENDENT

New York Education Law 2(14) states in pertinent part that [t]he term school

officer means a clerk, collector, or treasurer of any school district; a trustee; a member of a

board of education ; a superintendent of schools . In a seminal case, the Second

Department held that a Community Superintendent within the New York City School System

was a public officer under the Public Officers Law. See Petrella v. Siegel, 136 A.D.2d 81 (2d


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{W0166250.1} 8

Dept. 1988), affd on other grounds, 73 N.Y.2d 846 (1988). In that case, the Appellate Division

held

The Community Superintendent is referred to in both the

Education Law and in the petitioner's contract of employment asthe chief executive officer of the community school board andthe educational system [see Education Law 2590-f(1); 2566(1)]. Furthermore his position is created, and his powersand duties are prescribed, by statute [and] is vested with certainpowers which he may exercise independently of the communityschool board.

Id., at 82.

Following Petrella, the Commissioner of Education examined whether a superintendent

of schools ofr a central school district was also a public officer like a community superintendent.

See Application of Karpen v. Cold Spring Harbor Cent. Sch. , Decision of Comm. of Educ. No.

14,185 (July 30, 1999). The Commissioner noted that a superintendent of a central school

district (such as Dominick) is the chief executive officer of the District, the office is a creation of

statute, and the superintendent is vested with numerous duties, obligations, and responsibilities

similar to a community superintendent. See Educ. Law 1711; comparePetrella, 136 A.D.2d at

82; see Application of Karpen, Decision of Comm. of Educ. No. 14,185. Ultimately, the

Commissioner held that a superintendent of schools of a central school district should be treated

as a public officer with respect to their oaths of office according to the Public Officers Law.

Application of Karpen, Decision of Comm. of Educ. No. 14,185.

Respectfully, it is submitted that, as the oath of office provisions of the Public Officers

Law apply to a Superintendent of a Central School District, so to do all other provisions of that

statute, especially where a superintendent is listed as a district officer in the same statute which

lists other school district officers who are unquestionably public officers as well. See Educ. Law

2(14). A Superintendent of Schools is therefore subject to the rules and requirements that


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pertain to public officers under New York Public Officers Law. See Petrella v. Siegel, 136

A.D.2d 81;Application of Karpen, Decision of Comm. of Educ. No. 14,185. For a public officer

to properly resign from their appointed or elected position:

Every resignation shall be in writing addressed to the officer or body to whom it is made. If an effective is specified in such

resignation, it shall take effect upon the date specified, providedhowever, that in no event shall the effective date of suchresignation be more than thirty days subsequent to the date of its

delivery or filing.

N.Y. Pub. Off. Law 31(2). The same rule applies to district officers who are public officers of

a local school district. SeeAppeal of Bd. of Educ. of the Plainedge Union Free School Dist.,

Decision of Comm. of Educ. No. 14,644 (Sept. 25, 2001); Application of Daniel Karpen,

Decision of Comm. of Educ. No. 14,185.

Dominicks letter of resignation was dated April 7, 2010. [See Ex. D]. The

Respondent Board passed a resolution accepting the previously offered resignation effective

November 1, 2010 at its meeting on May 5, 2010. [See Ex. B]. IfSuperintendent Dominicks

purported resignation had been validly drafted, submitted, and accepted by the Board, the latest

date of her employment with the District would have been thirty (30) days after the May 5th

board meeting, or June 4, 2010. However, the Boards own resolution from May 5 and

subsequent actions since then clearly indicate that Dominick did not resign her position on June

4, 2010. Moreover, the Boards resolution in accepting the resignation is a separate and distinct

violation of section 31 of the Public Officers law, rendering that resolution invalid on its face.

It is undisputed that Dominick has been serving as the Superintendent of Schools for the

Board and continues to do so up to the date of the commencement of this proceeding. It is also

undisputed that the purported letter of resignation and Board resolution accepting that letter are

invalid on their face as violations of the Public Officers Law. Finally, Dominick continues to


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actions before May 5, 2010 were ultra vires or, in the alternative, her actions were approved by

the Board in secret and behind closed doors in violation of the Open Meetings Laws. In either

circumstance, the Severance Agreement is a nullity and unenforceable.

Based on the foregoing, petitioners respectfully request an Order and Judgment of this Court

against Respondent for the relief requested in the Petition in all respects.

Respectfully yours,

Dated: October 27, 2010 __________________________________Dennis G. OHara, Esq.OHARA, OCONNELL & CIOTOLIAttorneys for Petitioner7207 East Genesee StreetFayetteville, New York 13066-1262Tel. No.: (315) 451-3810

Cc: The Board of EducationJordan-Elbridge Central School District9 North Chappell StreetJordan, New York 13080

Frank W. Miller, Esq.Attorney for Respondent Board

6575 Kirkville RoadEast Syracuse, New York 13057

James P. Evans, Esq.Attorney for Respondent Dominick

Hiscock & BarclayOne Park Place300 South State StreetSyracuse, New York 13202


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