2430 Ridgeway Avenue Rochester, NY 14626 5853681111(v) 5853681100(f)

www.modicalawfirm.com

BY E-MAIL jswiatek@hodgsonruss.com

March 2, 2015

Jeffrey F. Swiatek, Esq. Hodgson Russ, LLP 140 Pearl Street, Suite 100 Buffalo, NY 14202-4040 Re: Bolgen Vargas, Ed.D. & the Board of Education of the Rochester City School District Dear Mr. Swiatek:

I hope you are well. I have been retained by Bolgen Vargas, Ed.D., Superintendent of the Rochester City School District [RCSD]. I understand that you represent the Board of Education [Board] of the RCSD.

Dr. Vargas has asked me to evaluate whether he has one or more causes of action regarding

"reset" resolutions that the Board will consider tomorrow evening. Having studied the resolutions, it is clear to me that the Board does not intend to "reset" its relationship with Dr. Vargas. Rather, it intends to remove his authority as chief executive officer to manage operations of the RCSD. Specifically, the Board intends through these resolutions to assume direct hiring and firing authority over virtually every RCSD employee and to assume responsibility for negotiating contracts on behalf of the RCSD.

This letter is written as a professional courtesy to let you know that I believe these resolutions violate state law and the terms of Dr. Vargas employment contract with the RCSD. Violation of State Education Law

Under amendments sponsored originally by Rochester area Assembly member David Gantt in 1997, the New York Education Law [NYEL] specifically grants the Superintendents of Rochester, Buffalo and Syracuse the right to appoint their own management teams. NYEL 2554 (2) and 2566 (6) states that:

...in the city school districts of the cities of Buffalo, Rochester, and Syracuse appointment of associate, assistant and district superintendents, and other supervising staff who are excluded from the right to bargain collectively pursuant to article fourteen of the civil service law shall, within the amounts budgeted for such positions, be by the superintendent of such city school district; and to determine their duties except as otherwise provided herein

[emphasis added].

mailto:jswiatek@hodgsonruss.com

Letter to Jeffrey F. Swiatek, Esq. March 2, 2015 P a g e | 2

MODICA & ASSOCIATES, ATTORNEYS

Gov. George Pataki, in a memo explaining his approval of the legislation, wrote: Current law deprives the Rochester superintendent of the basic and essential power to assemble his own senior management team. This is contrary to sound management principles that require the chief executive of any organization to have the authority to assemble a team of senior managers who share common goals and a common philosophy.

This provision in State law cannot be abrogated through a Resolution by a local school Board. Violation of Contract Dr. Vargas employment contract upholds this state requirement relative to employees in the Superintendent's Employee Group [SEG]. In addition, the contract gives him hiring and contracting authority that these "reset" resolutions would unilaterally take away. Section 4b of his employment contract states:

Without limiting the foregoing, the Superintendent shall possess the specific authority, right, responsibility and duty:

(iv) to make recommendations to the Board as a prerequisite to either the appointment or termination of employment of both instructional and non-instructional personnel;

(xiv) to negotiate and execute contracts for services, within the limits of the Board's appropriation of funds for such services in the annual budget, as amended from time to time.

The proposed resolutions would remove Dr. Vargas authority to make recommendations to the Board as a prerequisite to appointing or terminating staff. They would remove his contracting authority by requiring specific prior authorization of the Board to execute each contract for services. No Cause for Change

The resolutions sent to Dr. Vargas by the Board note that, under his employment contract, the "Board may from time to time modify or delete any duties or responsibilities of the Superintendent ..." They fail to cite the complete language in section 4c of his employment contract which provides:

The Board may from time to time modify or delete any duties or responsibilities of the Superintendent, and also may prescribe additional duties and responsibilities of the Superintendent to remain in compliance with the New York Education Law or other pertinent statutes of the State of New York, provisions of any Rule of the State (sic) New York State Board of Regents, or decisions of the Commissioner of Education of New York

[emphasis added].

The proposed resolutions are not needed to remain in compliance with state law. To the contrary, they will place the RCSD in violation of the law as noted above.

Letter to Jeffrey F. Swiatek, Esq. March 2, 2015 P a g e | 3

MODICA & ASSOCIATES, ATTORNEYS

The performance of Dr. Vargas as Superintendent provides no basis for making these changes. He has not created any new positions in the SEG. In fact, he has reduced significantly the number of SEG employees (>60 under previous superintendents; 49 when he became superintendent in May 2011; 31 today).

Dr. Vargas has been lauded by the Board multiple times for bringing financial discipline to the

RCSD and for increasing resources for classroom instruction, services and supports that directly benefit students. Under his leadership, graduation rates are the highest they have been in five years, despite more rigorous state requirements for earning a diploma. Programs for increased learning time during the school year, expanded summer learning and improved literacy all have been cited nationally as models of progress in urban education. All of these speak to the effectiveness of Dr. Vargas as Superintendent, which makes it difficult to understand why the Board proposes to remove his essential authority. Disruption to the RCSD

As your client is aware, RCSD administration is developing a budget for the next school year which is due to be presented later in March. State assessments will take place in April for students in elementary and middle grades, followed by Regents exams and related graduation requirements for secondary students. Dr. Vargas is eager to avoid disruption or distractions at this critical time in the school year. He would prefer instead to continue implementing the RCSD's Action Plan to improve student achievement.

As his attorney, however, I have advised Dr. Vargas that the proposed Board resolutions are illegal and will severely impair his ability to manage the RCSD. Left unchallenged, they will impair him and future RCSD Superintendents (and his colleagues in other large districts) from executing their responsibilities as CEOs. Although we hope that legal action is not necessary, I want you to be aware that we are prepared to litigate this matter to vindicate Dr. Vargas rights if he authorizes us to do so.

Very truly yours,

MODICA & ASSOCIATES, ATTORNEYS, PLLC

STEVEN V. MODICA Steve@ModicaLawFirm.com

SVM cc: Dr. Vargas (by e-mail)

Jacinda Conboy, Esq. (by e-mail) Edwin J. Lopez-Soto, Esq. (by e-mail) Van Henri White, Board President (by e-mail van.white@thelegalbrief.com)

mailto:Steve@ModicaLawFirm.commailto:van.white@thelegalbrief.com