The Erie County Water Authority's former executive director plans to take legal action against the authority for firing him, contending he was made a political scapegoat for the failings of others at the authority and that his reputation was unfairly tarnished by his termination.
Earl L. Jann Jr. filed a notice of claim, a precursor to a lawsuit, alleging negligent or intentional acts of discrimination and free speech violations by the authority. He may be filing a separate claim for breach of contract.
"He wants his reputation restored, and if that can’t happen, he wants to be compensated for the embarrassment," said Ralph Mohr, a Republican commissioner at the Erie County Board of Elections who is serving as his attorney.
Terrence D. McCracken, secretary to the authority, said the authority will not comment on the legal matter.
The Erie County Water Authority is controlled by the political party that controls the Erie County Legislature. The Water Authority board, controlled by Democrats, voted to fire Jann in June, after a state issued a scathing report on authority leadership. The board declaring the terms of Jann's employment contract were invalid.
Jann, a retired pharmaceutical salesman and former Marilla town supervisor, had been hired as executive director by a then-Republican-controlled board in May 2017. His previous Water Authority experience was serving as one of its commissioners. In January, the Republican-controlled board approved a three-year contract for Jann, virtually guaranteeing his full salary through 2020 unless the authority fired him for cause. The pact set his salary at $153,600 this year.
The party-line vote for his new contract by the Water Authority’s board of commissioners came days after Democrats became the county Legislature’s majority party.
Now, Jann is considering a lawsuit based on a breach of his three-year employment contract with the authority, Mohr said.
Mohr said Jann's contract is clear that short of Jann's voluntary resignation or some type of disability, the authority had no right to unilaterally fire Jann without cause.
Jann was fired after a state agency found the Water Authority had violated numerous policies and laws regarding transparency and good governance. The report by the Authorities Budget Office faulted the entire authority board, which Jann chaired before being named executive director in May 2017. The report also criticized actions by administrators, though much of that criticism was directed at the former authority secretary, Joseph Burns.
"Earl was not responsible for any of the fallacies cited in the report," Mohr said. "But he had a title, and it was basically a conspiracy to make him a scapegoat, and it was a political motivation to have him fired."
Commissioners contended they had the right to fire Jann based on legal advice they received indicating that, in most cases, an executive director cannot be granted an employment contract that extends beyond one year because past boards cannot bind the hands of future boards when it comes to matters of governance.
Mohr said doesn't know if he buys that legal interpretation, but even if he did, other elements of Jann's employment contract remain valid, including provisions that allow him to be fired only for just cause. That would require the authority to grant Jann a board hearing, and he would have the right to take the matter to arbitration if the board decided to move ahead with his termination.
Firing him without cause would constitute a breach of contract, a remedy to which would be payment of his full contract, Mohr said. Based on what Jann was earning when he was terminated, that total would amount to roughly $300,000 plus the cost of his benefits.
Jann has not yet explicitly stated what type of compensation would seek if he pursues a lawsuit against the authority, Mohr said. He added that the goal of the suit would not be to seek punitive damages against the authority, but to be compensated in some manner for the loss of his reputation if his reputation cannot be restored.
Mohr said Democratic leaders at the authority conspired against Jann.
Their actions were taken in an effort to quell ongoing Buffalo News coverage of the Water Authority and the state report, Mohr said, as well as alleviate the public pressure facing board Chairman Jerome Schad, who was the last remaining commissioner serving on the three-member board criticized in the state report.
"They were in consultation with Democratic headquarters," Mohr said. "They wanted to get The Buffalo News off of Jerry Schad’s back. And I was told directly, 'Well, they want to save their own skin.' "
Mohr added that before voiding Jann's contract, some Democratic authority leaders threatened Jann with firing if he didn't voluntary resign. And other Republican administrators at the authority were told that if the attacks against Schad didn't stop, more people would be fired.
Schad said he wouldn't comment on the legal response by the authority. But as for the allegation Jann was made a political scapegoat to protect Schad and turn the spotlight off the authority, Schad said, "I obviously strongly disagree with Mr. Mohr’s understanding of everything."
He and McCracken said they are moving forward with the job posting for a new executive director, though they have given up on making it a civil service position with concrete minimum standards. Given the intricacies of civil service rules, the lengthy processing of job specifications for that position and the way a civil service employee would interact with other administrators, the board decided to just repost an older, broader description of the job, Schad said.
The tougher preferential standards, however, will still apply when the authority board interviews and selects a new director, Schad said. Those preferences ask that an applicant:
- Have graduated from an accredited college or university with a baccalaureate degree with 10 years of management experience, of which five years must have been in an executive, administrative or senior supervisory capacity with or for a public or private entity.
- Possess a New York State license as a professional engineer; a New York State license as a certified public accountant with five or more years of experience in the public sector; a master's degree in business or public administration; or administrative experience working for a public or private utility entity.