County Must Pay | $80K Facebook Post | No Sexual Harassment

Original Content

Court of Appeals Affirms Order Requiring Nassau County to Pay School Tax Refunds

Court of Appeals Affirms Order Requiring Nassau County to Pay School Tax Refunds In our March 18, 2013 newsletter, we reported on this firm’s successful representation of 41 school districts in a case before the Appellate Division, Second Department entitled Baldwin Union Free School District v. County of Nassau, 105 A.D.3d 113, 962 N.Y.S.2d 229 (2d Dept. 2013). The Appellate Division reversed a lower court decision and agreed with our argument that Nassau County’s enactment of a local law (Local Law 18 of 2010) shifting the County’s obligation to pay real property tax refunds to its individual taxing districts (i.e., the school districts, towns and special districts), violated the State Constitution and several statutory provisions of the Municipal Home Rule Law. As the Appellate Division instructed, although local governments generally have the authority to enact local laws that are inconsistent with special laws, a “county may only adopt local laws relating to the levy, collection and administration of local taxes [if the] local laws are consistent with State laws, irrespective of whether the State laws are general laws or special laws.” Local Law 18 was inconsistent with a State special law enacted in 1948 and known as the County Guaranty, which made the County responsible for all real property tax refunds.

The County appealed to the Court of Appeals, the State’s highest court. In a unanimous ruling set forth in a 29-page decision issued on February 18, 2014, the Court of Appeals agreed with our arguments on behalf of the school districts and affirmed the ruling of the Appellate Division in our clients’ favor. See, Baldwin Union Free School District v. County of Nassau, __N.Y.2d__, 2014 WL 590617 (Feb. 18, 2014). The Court began by instructing: “Given that the authority of political subdivisions flows from the State government and is, in a sense, an exception to the State government’s otherwise plenary power, the lawmaking power of a county or other political subdivision can be exercised only to the extent it has been delegated by the State.” It also noted that, “because the Constitution expressly imbues the State government, rather than any locality, with the power of taxation, State law governs the tax field unless the State Legislature or the Constitution unambiguously delegates certain taxation authority to a political subdivision.” As the Court reiterated, citing to its 1938 decision in County Securities, Inc. v. Seacord, 278 N.Y. 34, 36 (1938), “[i]ndeed, [t]he power of taxation, being a State function, the delegation of any part of that power to a subdivision of the State must be made in express terms, and the delegation of any form of taxation authority cannot be inferred.”

The Court held that, by enacting Local Law 18, Nassau County exercised the “power of taxation” within the meaning of Article XVI of the Constitution. As it found, “[b]y requiring the taxing districts within Nassau County to pay real property tax refunds to the taxpayers, relieving the County government of that tax refund burden and specifying that the taxing districts shall be served with notice of tax certiorari proceedings, Local Law 18 directly alters the assignment of tax burdens and the administration of the tax system with respect to tax review proceedings. Thus, Local Law 18 is an exercise of the ‘power of taxation’ which cannot stand unless the State has expressly delegated to the County the power to pass such a local tax law.”

The Court then proceeded to examine the County’s Charter and Administrative Code, as well as the State Constitution and the Municipal Home Rule Law, and found that, “[t]he State Legislature has not delegated to the County the prerogative to supersede a special State tax law, and this lack of authority is fatal to Local Law 18.” As the Court concluded, “[t]he County possesses substantial home rule powers, but the prerogative to impinge freely upon the State’s constitutional power of taxation, by means of superseding a special State tax law, is not among them. Because Local Law 18 was designed to achieve that impermissible intrusion, it is hereby declared unconstitutional, invalid, unenforceable and void.”

The Court’s ruling relieved our School District clients of the obligation under the Local Law to contribute toward real property tax refunds in an amount estimated to be approximately $53 million per year.

An $80,000 Facebook Post

An $80,000 Facebook PostIf you use social media, you undoubtedly know someone who shares too much information with their “friends” on Facebook. But, have you ever heard of a college-age girl’s Facebook post that cost her parents $80,000? That is exactly what happened in the Florida case, Gulliver Schools, Inc. v. Snay, 2014 WL 769030 (3d Dist. Ct. of Appeal of Fl. 2014).

In Gulliver, the plaintiff sued his former employer, the Gulliver School, Inc., for age discrimination and retaliation under the Florida Civil Rights Act. The case was settled, with the parties executing a general release and the school agreeing to pay Snay three checks, one for back pay in the amount of $10,000, a second for $80,000, and a third to Snay’s attorney for $60,000. Central to this agreement was a detailed confidentiality provision, which stated:

The plaintiff shall not either directly or indirectly disclose or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement. . . . A breach . . . will result in the disgorgement of the Plaintiffs’ portion of the settlement payments.

Four days after the execution the agreement, Gulliver officials were notified that Snay had breached the confidentiality portion of the agreement. Snay’s daughter posted details of the settlement on Facebook, stating: “Mama and papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” This post went out to approximately 1,200 of the daughter’s Facebook friends, many of whom are past or present Gulliver students.

As a result, Gulliver refused to tender the second check for $80,000 to Snay, but paid the $10,000 for back-pay, and the $60,000 to Snay’s attorney. Snay filed a motion to enforce the settlement agreement, arguing that his daughter’s comment did not constitute a breach, and the trial court agreed. However, on appeal, the Court reversed, stating that “the plain, unambiguous meaning of [the Confidentiality provision] is that neither Snay nor his wife would ‘either directly or indirectly’ disclose to anyone (other than their lawyers or other professionals) ‘any information’ regarding the existence or the terms of the parties’ agreement.” “[B]efore the ink was dry on the agreement, and notwithstanding the clear language . . . mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do.” As a result, the appeals court reversed the lower court’s order, and denied Snay’s motion to enforce the agreement. The decision does not state whether or not Snay’s daughter still went on that European vacation.

Report of Sexual Harassment of a Non-Employee Is Not Protected Activity

Report of Sexual Harassment of a Non-Employee Is Not Protected ActivityRecently in Saliba v. Five Towns College a federal court dismissed, among other claims, a retaliation claim by a former associate professor against her college employer because the professor’s reporting of sexual harassment of a student by another faculty member was not a protected activity under the Federal Act. 2014 WL 92690 (E.D.N.Y. 2014).

The complaint alleged that Saliba was an assistant professor of English at Five Towns College who was terminated on December 23, 2001. She alleged that her termination was in retaliation for complaints that she made “regarding many topics, most particularly a sexual harassment issue involving a professor and his students.” According to the complaint her “termination . . . occurred solely because she had voiced her concerns regarding rampant corruption in the administration of [the college] . . . , as well as concerning the safety and well-being of members of the student body, who were either being sexually harassed by another professor, or who were participating in the use and distribution of illegal drugs, with members of the security personnel employed by [the college].” The complaint identified 34 “specific complaints” that she made concerning the college.

Citing the most recent United States Supreme Court decision which clarified the legal standard for making a successful Title VII retaliation claim, the Court held that the former professor was required to show that her protected activity was a “but-for” cause of her termination, not just a motivating factor, as was the previous standard. The Court held that it “must ensure that the complaint sets forth ‘enough facts to state a claim to relief that is plausible on its face.’” In other words, she had to allege sufficient facts to show that if she hadn’t engaged in protected activity, she wouldn’t have been terminated. The Court further reasoned that a “pleading that does nothing more than recite the elements of a claim, supported by mere conclusory statements, is insufficient to ‘unlock the doors of discovery.’”

To state a claim for retaliation, “a plaintiff must plead facts showing ‘[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.’” The Court stated that to satisfy the first requirement, “the plaintiff need only show a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’”

To the extent that Saliba maintained that she was retaliated against for reporting sexual harassment of a student by a faculty member, the Court held that the complaint failed to state a claim for retaliation because such reporting was not a protected activity: “Saliba’s claim of retaliation for opposing discrimination by a co-employee against a non-employee is not cognizable under title VII; such activity does not constitute ‘protected activity,’ as Saliba cannot reasonably believe that she was opposing [a protected class’ ] discrimination in employment practice.”

Original Content