The City of Troy, New York, "Where Henry Hudson Turned Around."

Thursday, August 23, 2007


For background, see this post.

Beginning in 1996, Jeffry Jackson, and others, sent a series of memoranda to County Executive Henry Zwack. For instance: Read More...

On February 14, 1996, Plaintiff sent a memorandum to County Attorney Smith complaining that Local Law No. 6 changed N.Y. REAL PROP. TAX LAW § 1532 in that it caused three tax map technicians to be transferred from his office and further requesting Attorney Smith's opinion on the changes since he believed they were inconsistent with the duties of his office under the New York Real Property Tax Law.

On August 27, 1996, Plaintiff wrote a letter to the New York State Office of Real Property Services ("ORPS"). This letter made reference to, and Plaintiff enclosed a copy of, the county law and resolution as well as his memorandum to the county attorney. Within this letter, Plaintiff stated that though some duties performed by the tax map technicians remained the same, certain service related functions were no longer being used and, furthermore, there was a "potential to severely restrict tax map and assessment file maintenance.

On January 25, 1999, Plaintiff sent a memorandum to former-County Executive Henry Zwack detailing the duties of Plaintiff's office and asking those duties that were transferred be reinstated as required by the New York Real Property Tax Law. On November 23 and 24, 1999, Plaintiff sent two memoranda to County Executive Zwack expressing that, in his opinion, certain letters from assessors addressed the essence of Rensselaer County violating Article 15 of the New York State Property Tax Law and the only resolution to the problem was to restore the tax map positions to Plaintiff's departmental budget.

On or about February 12, 1999, Plaintiff sent a letter to Zwack expressing discontent that personnel changes put the Bureau of Tax Services "in an untenable position." As a result of Plaintiff's evocation of his concerns, the objections to the transfer of the tax mapping functions and personnel changes became points of contention between Plaintiff and Zwack. During this conflict and addressing Zwack's attacks on his job performance, Plaintiff sent a letter to Zwack defending the performance of his duties.

Tax bills for the year 2000 were issued by an outside contractor and Plaintiff advised County Executive Zwack of problems that may result because of inadequate computer resources. Plaintiff asserts that the transfer of tax mapping duties contributed to difficulties encountered in the issuance of the tax bills for the year 2000. Beginning in December 1999, the press got wind of the fact that trouble was brewing with the tax bills from Rensselaer County, namely that they failed to include penalties incurred by property owners. Thus, from late December 1999 into 2000 and beyond, a plethora of articles were published by the press. These articles not only discussed the numerous problems associated with the late tax bills and penalties owed to the County, but within some of these articles Zwack began to personally attack Plaintiff for these problems. In addition, several assessors' associates began expressing their views as to the situation regarding the tax bills as well as their opinion of Zwack's attack on Plaintiff. The articles further described Plaintiff's problem with the transfer of tax mappers and the tax mapping function that came as a result of Local Law No. 6 as well as other issues relating to Plaintiff's position.

While these articles were being published, Plaintiff sent several more letters and/or memoranda to Zwack and others regarding the tax bill issue, his personal reputation, and other related issues. Among Plaintiff's many correspondences were letters sent to the County Legislature trying to get them to return the tax mapping function to his office. Subsequently, and while articles were still being published and Plaintiff was still writing letters/memoranda, in May 2001 Zwack resigned as County Executive. Upon the resignation in May 2001, Kathy Jimino became the County Executive. During this transition, Plaintiff remained the Director of Tax Services though his term was set to expire on the last day in September 2001. However, because certain events limited Jimino's time to make a decision on Plaintiff's reappointment, Plaintiff stayed on as "interim" Director until March 1, 2002, when the decision was finally made not to reappoint Plaintiff.

Legal to English translation: Jackson told Zwack and others that Local Law 6 may become a big crap sandwich for the County.

Remember, Jackson is an appointee, not an employee. If an employee rights a letter or publishes a blog critical of a public official or a policy and is fired for that expression, there's a strong First Amendment case. That employee has been punished for speech. Here, we have something different. Something that strengthens the County's hand. Typically, appointees have no particular right to an appointment and certainly no right to re-appointment. That fact has to help the County. Right?

For a 1983 claim such as the one brought by Jackson, adverse employment action must be taken against the one exercising speech. Here, the failure to re-appoint Jackson is the adverse action. But, Jackson and Zwack were the ones involved in what became a public spat. Zwack resigned and therefore was not in a position to take any adverse action. Zwack was dropped from this suit, leaving Jimino holding the crap sandwich.

Of course, all this happened before 2003. We haven't found any updated facts. Let us know if you've spotted the updated facts.

In the third post, we'll tell you what the court did when the defendant's moved to dismiss the case.

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