Angelo Penna scored 27 points on Wednesday to spark an 81-31 Elba Lancers win over Lyndonville.
Kevin Marsceill scored 17 points, hitting five three-pointers, including four in the fourth quarter.
Also on Wednesday,
Pembroke beat Maryvale, 57 to 41. Tyson Totten scored 27 points and had 16 rebounds. Avery Ferreira scored 15 points and Jayden Bridge had nine rebounds.
Eastridge beat Batavia 70-49. Justin Smith scored 14 points for Batavia. Carter Mullen scored 10.
A building at 3399 Buffalo St., Alexander, a former medical office, that has been the subject of a decade-long legal battle between the Village of Alexander and C&D Design, Build, Development, a Corfu-based business. Photo by Howard Owens.
After an adverse ruling against the village of Alexander in a property condemnation case, the village and its code enforcement officer have filed a malpractice lawsuit against the Attica-based law firm and the lead attorney who handled the case.
The suit names as defendants Dadd, Nelson, Wilkinson & Wujcik, PLLC and attorney James M. Wujcik.
Wujcik, until last week, was county attorney for Genesee County. He served one term, which is two years.
County officials said the decision to replace Wujcik with Mark Boylan had nothing to do with the malpractice accusation.
Neither Legislature Chair Shelley Stein nor County Manager Matt Landers revealed any concern about Wujcik's job performance.
At Wednesday's organization meeting of the County Legislature, all Stein said about Wujcik was that he decided to pursue other opportunities. In response to an email from The Batavian on Thursday, Stein said she knew nothing of any lawsuit naming Wujcik and had no further comment.
"I'll learn with your readers," she said.
The Batavian submitted a Freedom of Information request to Landers requesting any letter of resignation or any written notice of termination, and Landers said there was no responsive document.
Landers said Wujcik had come to the end of a fixed two-year term. He did not resign and was "not encouraged to resign as his term was coming to a natural end."
The lawsuit was filed in August, and The Batavian learned of it after a person who did not include a return address on the envelope sent a copy to the publisher.
On Wednesday morning, The Batavian emailed a request for comment on the pending lawsuit to Wujcik at his law firm address and he has not responded.
Wujcik and the firm have retained legal counsel, The Batavian was told by a source, but those attorneys have yet to file a response to the lawsuit, and no hearing date has yet been set for an initial appearance by both parties in the Supreme Court.
Alleged malpractice suit The plaintiffs are the village of Alexander and Daniel J. Lang. Lang is the code enforcement officer for the Town of Batavia, which has an inter-municipal agreement with Alexander (as well as other towns and villages in the county) to provide code enforcement services.
Until April 2023, Dadd, Nelson, Wilkinson & Wujcik provided municipal legal services to the village of Alexander.
In November 2015, Corfu-based developer and property management firm C&D Design, Build, Development, filed suit against the village and Lang alleging that a building owned by the firm at 3399 Buffalo St. had been improperly condemned in September 2013.
The village, under terms of its agreement with its law firm, selected Wujcik as a lead attorney to handle its defense, a position he held throughout most of the legal battle, which is now entering its 11th year.
The village dismissed the law firm and Wujcik sometime after Genesee County Supreme Court Justice Diane Y. Devlin issued a summary judgment in favor of C&D Design and its owner Gary Dominick, also a principal in the development firm Dominick & Daughters.
The village's lawsuit against Wujcik and his firm states that Alexander and Lang stand to incur significant monetary damages as a result of the summary judgment, which the suit blames on Wujcik's handling of the case after a previous ruling in favor of the village was overturned by an appeals court.
The potential monetary losses, which have yet to be decided by the court, will not be covered by insurance, according to the suit.
The suit alleges that Wujcik:
failed to preserve and protect the rights of the village and Lang through the C&D proceedings;
failed to respond to discovery demands;
failed to oppose discovery motions, resulting in sanctions;
failed to adhere to two separate orders directing the village and Lang to provide complete responses without objection to those discovery demands;
failed to appeal the summary judgment in a timely manner;
failed to raise appropriate legally viable affirmative defenses; and
failed to communicate with the village and Lang to keep them informed of developments in the case.
"But for the defendants' (Wujcik and his firm) legal malpractice, plaintiffs (village and Lang) would have successfully defended the underlying lawsuit," the lawsuit against the Attica-based law firm states. "Plantiffs' actions with respect to C&D's property at issue in the underlying lawsuit were motivated only to address complaints regarding life and safety at the property owned by C&D. All of the plaintiff's actions were in compliance with the New York State Uniform Code. Plaintiffs' actions afford C&D due process with respect to actions taken by plaintiffs in the Zoning Board of Appeals and through an Article 78 proceeding. C&D did not avail itself of the opportunity to challenge plaintiffs' conduct prior to the commencement of the underlying lawsuit."
The suit states that because of the alleged malpractice, Devlin found in favor of C&D on Aug. 18, 2022, in a summary judgment (no trial) on its claim that its due process rights were violated and awarded C&D legal fees and expenses and ordered a hearing to determine the amount of C&D's damages.
"After entry of the Aug. 22, 2022 order, defendants failed to timely file a notice of appeal with respect to that judgment and failed to inform plaintiffs of the adverse judgment," the suit states. "Instead, defendants filed a frivolous motion to reargue on plaintiffs' behalf that had no chance of success because it was not the proper vehicle to challenge the court's ruling."
Foul odor Events leading up to the "underlying case" began in the late summer of 2013 when at least two employees of Dr. Mary Obear, who operated a clinic in C&D's building, complained of foul odors in the building and were diagnosed with a respiratory illness.
According to court documents, the building was constructed according to Obear's specifications in 2012 and received a certificate of occupancy signed by Karl Bender, the village's code enforcement officer at the time.
In response to the complaints about the odor and ailments, according to Lang's statements in court records, Lang was granted access to the building on Sept. 4 by its legal occupants and commenced a visual inspection. Court documents state he discovered 37 code violations during that visit and that, coupled with the reported odors and illnesses, he condemned the building on Sept. 9, 2013, requiring Obear to immediately close the clinic.
The building was posted as condemned over the next two years, so at this point, Dominick filed a lawsuit alleging that the village condemnation was unnecessary and violated the law and his Constitutional rights.
He claimed that village leaders had a history of retaliating against citizens who complained about village actions and that he had been vocally critical of village decisions more than a decade earlier, suggesting that the condemnation of his building was an act of retaliation.
On Sept. 24, 2015, the village delivered to Dominick a list of 80 alleged code violations. Dominick's attorneys characterized the list as a vague recitation of code sections without listing specific violations, but some of the violations listed are specific.
The letter, which is part of the court record, states that the main beam for the structure does not meet NYS uniform code requirements, the foundation system is not built as designed, the floor joists have been cut, notched, sawed, and are not in compliance with code, that there was seepage through the wood foundation, which was not constructed in accordance with the design, and that Lang viewed unapproved methods of construction through the structure.
"Due to the conditions present during our visit, we deemed the condition of the structure unsafe," the letter states. "Due to the lack of required documentation provided for this structure and the contractor not following the submitted plans, I am also in question of all structural elements of the building not in the submitted drawings that we cannot visually inspect."
The letter asked that prior to anyone undertaking any repairs on the building, that a full structural analysis and evaluation by a licensed engineer be completed.
As for the odor complaints, Dominick hired Lozier Environmental Consulting, Inc. to conduct fungal air sampling. The consultant determined there was mold in the building, but the spore concentration in the occupied areas of the building was within acceptable air quality standards. However, the same inspector found penicillium/aspergillus spores in the basement at levels that are considered unsafe. The consultant recommended several actions to remediate the issue.
In one of his answers to court filings, Lang seemingly cited this report as support for the condemnation, but attorneys for Dominick note that the report was completed after the condemnation. It also did not support condemnation, they asserted, because air quality in the occupied part of the building was found to be within acceptable limits.
C&D vs. Alexander lawsuit In late 2016, the attorney for C&D filed an amended complaint that focused on trespass (alleging Lang entered the premises without permission), nuisance, inverse condemnation, tortious interference, and violation of civil rights.
The complaint was amended again on Jan. 22, 2018, seeking damages for violations of Dominick's civil rights under the First, Fifth, and 14th Amendments to the U.S. Constitution and violations of the state Constitution.
The suit claimed that Dominick's rights to due process were violated because he was not afforded the right to a hearing on the "taking" of his property by the government.
Dominick's attorneys claimed in multiple filings that C&D was entitled to either a hearing before the building was condemned, or in the case where immediate condemnation is a matter of imminent public safety (which the attorneys said was not the case), a hearing after condemnation.
Wujcik argued that Dominick foreclosed a hearing at the village level when he retained an attorney who ordered Lang to have no further communication with his client, indicating pending legal action. He also argued that C&D chose to forego its right to an Article 78 proceeding and instead chose to file a lawsuit. In either case, any lack of due process, according to Wujcik, was at C&D's doing, not due to conduct by the village nor Lang.
In an eight-page order issued on Dec. 18, 2018, Judge Emilio Colaiacovo dismissed C&D's entire case.
Colaiacovo found that Lang operated within the scope of his legal duties as a code enforcement officer, with a reasonable belief that the building on Buffalo Street was a threat to public safety, and that Lang acted without political motivation and his actions were not arbitrary.
"Defendants have provided ample documentation justifying their decision to placard the property,' Colaiacovo wrote. "While they may have disagreed with the decision or the reasons offered by Lang, the plaintiff has not demonstrated any egregious municipal misconduct. The record is bereft of any 'political concerns' that prompted the determination of the village or its building inspector. While arguably, the plaintiff may be able to show that the defendants misinterpreted the village or state building code, that in and of itself does not constitute egregious official conduct motivated by the color of politics."
Overturned on appeal Attorneys for C&D appealed the decision, and on Aug. 25, 2020, the Appellate Division of the Fourth Department, Supreme Court of the State of New York, overturned Colaiacovo's decision.
"Initially, we agree with the plaintiff that the court erred in converting the defendants' motion to dismiss to one for summary judgment," the appellate justices wrote. "The court did not provide 'adequate notice to the parties that it was doing so, nor did defendants and plaintiff otherwise receive adequate notice by 'submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course."
The ruling was not entirely favorable to C&D, however, with the court finding that the court properly denied the plaintiff's motion because the plaintiff failed to establish that it is entitled as a matter of law to the relief it sought as part of the suit -- removal of the placard on the building declaring it condemned.
The case was returned to Genesee County Supreme Court for further proceedings, which eventually led to the summary judgment by Devlin in favor of C&D.
According to a notice posted in a window at 3399 Buffalo St., Alexander, Dominick has been granted a permit to convert the former medical office building into four apartment units.
City of Batavia firefighters push in the new Engine 12 in a ceremony officially putting it in service at the Fire Hall on Evans Street, Batavia, on Wednesday. Photo by Howard Owens.
Back in the day, explained City Fire Chief Josh Graham, fire engines were horse-drawn, and since horses couldn't back up well, firefighters, when they returned the wagon to the hall, pushed it into its bay.
With the arrival of combustion engines, it became a tradition, Graham said, for firefighters to push in the new engine into the hall as part of a ceremony putting it into service.
"I was kind of shocked to find out a lot of the firefighters had never heard of a pushing ceremony, and I thought it was a pretty common knowledge thing, but it's just kind of paying tribute to the past firefighters," Graham said.
So that is what Batavia's firefighters did at the fire headquarters on Evans Street in Batavia on Wednesday. They pushed in the new Engine 12, which the city purchased for nearly $800,000. Most of that was financed through a low-interest loan from the United States Department of Agriculture. The city paid about $100,000 up front from its capital reserve fund.
Graham characterized the new apparatus as one of the best pieces of firefighting equipment he's come across in his career, praising the committee of firefighters and officers who came up with the specifications and design for Engine 12.
"The committee did a lot to think through the entire process on what was best for us and our needs and the city's needs," Graham said. "The way they laid it out, decided to go with a side mount pump, giving more room, the way they put the equipment, how they put the ladders on there. I mean, everything from top to bottom, even the lights that signify how full the tank is. They thought through everything. And it turned out extremely well. I couldn't be more pleased with it."
Capt. Jamie Call headed up the committee and said they were impressed with the manufacturer, Spartan, and are glad they selected that company to put the engine together according to their specifications. It means, among other things, faster delivery time.
"Their turnaround time is very short compared to some other brands right now," Call said. "I mean, it was a little less than a year. Now some of these other brands out there, they're out to 48 months to get delivery. This went really well."
He said the committee was comprised of members from all four of the department's four platoons and that a lot of thought did go into designing an engine that would meet the needs of the city for the next couple of decades.
"We are so very proud of what it is," Call said. "I'm very happy that we could all be part of this and have this great vehicle."
City of Batavia firefighters push in the new Engine 12 in a ceremony officially putting it in service at the Fire Hall on Evans Street, Batavia, on Wednesday. Photo by Howard Owens.
Chaplin Dave Erhart blesses the new Engine 12 and the men and women who will serve on it. Photo by Howard Owens.
The old Engine 12, after 22 years of service, is out of service, and once City Council approves it as surplus, it will be put up for auction, said Chief Josh Graham. Potential buyers include overseas fire companies, farmers, and entrepreneurs with ideas for creative uses. Photo by Howard Owens.
Pembroke will play for the Rotary Tournament championship on Thursday after knocking off Notre Dame in a first-round game on Tuesday, 50-43.
Elle Peterson scored 15 points, and had five assists and four rebounds to help lead the Dragons to the win in the Girls Basketball game.
Seneca Calderon scored 11 points and had four assists and five rebounds. Jaden Hootman scored seven points. Morgan Conibert scored six and blocked three shots. Regan Schneider grabbed seven rebounds while scoring four points.
For the Irish, Nina Bartz scored 15 points, Emma Sisson, 10, and Sofia Falleti, eight.
Paula L. (nee Morse) Nenni, of Clarence Center, NY entered into rest on December 29, 2023 at age 59.
Beloved wife of 35 years to Paul J. Nenni; loving daughter of John "Jack" (Joanne) Morse and the late Audrey Morse; cherished daughter-in-law of Joseph and Katherine Nenni; dear sister of Anne, Mary and Diane; fond sister-in-law of Angela "Lynn" and Lisa; also survived by loving nieces and nephews.
Relatives and friends may visit DENGLER, ROBERTS, PERNA FUNERAL HOME, 8630 Transit Rd., East Amherst, NY 14051 on Friday (January 5, 2023) from 3-7 p.m. Flowers gratefully declined.
Following a police pursuit from Byron into Batavia on July 31, a subject barricaded himself in an unoccupied -- though rented -- apartment in a complex on Bank Street. The police presence drew a lot of community attention. Photo By Howard Owens. (Photo a National Press Photographers Association regional award winner).
In 2023, the environment didn't always play nice with Genesee County. In June, wildfires in Canada raised concerns locally over air quality, and Bethany, along with Pavilion and Pembroke, have been suffering through water shortages.
Counties throughout upstate New York hit the panic button in the spring when rumors circulated that New York City was planning to bus asylum seekers and other immigrants to rural parts of another state, causing Genesee County to join in declaring a state of emergency and banning local facilities from housing migrants.
In sports, both Notre Dame (baseball) and Byron-Bergen (Boys Soccer) made runs at state championships. Pembroke won its second consecutive state championship in 8-Man Football.
Readers visited the site 1.4 million times in 2023 and viewed 9.2 million pages.
The big stories aren't always the most read stories. Here are the 15 most viewed stories according to stats for The Batavian in 2023.
Many of our stories were reported first on The Batavian, and we broke some important stories, most notably the travails of Ellicott Station. If you value great local reporting, you can help ensure it continues. Join Early Access Pass today. As a member of Early Access Pass, not only are you supporting your local community by supporting local news coverage, you are getting early exclusive access to our most important stories. You also get early access to Deal of the Day. Currently, you get a four-hour advance (look for this window of time to increase in 2024) on important stories and Deal of the Day.
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On Memorial Day, Genesee County's veterans and community members honored the men and women from the military who sacrificed their lives for the sake of freedom in the United States. By Howard Owens
The Batavia Muckdogs continued to grow in popularity in 2023 under the ownership of Robbie and Nellie Nichols. Photo by Howard Owens
Jimmy Sturr, the reigning king of polka, played Batavia Downs in April. Photo by Howard Owens.
A mail carrier was hailed as a hero after she successfully fended off a dog, Steve, who was attacking a home health care worker at a residence on South Main Street, Batavia, in June. Photo by Howard Owens (Photo won a regional award from the National Press Photographers Association)
Bethany's old Town Hall, too expensive to rehabilitate into a usable structure, was demolished in August. Photo by Howard Owens.
Oakfield hosted a box car derby during Labor Day weekend, the first time the event was included in the annual Labor Daze Music and Food Festival. Photo by Howard Owens.
For at least two weeks, I'm going to be unable to do much work.
Friday morning I was diagnosed with a detached retina in my right eye. I'm having surgery this morning. I get to spend the next week in a constant facedown position. It will be at least two, possibly three, weeks before I can return to work.
Well, history repeats. Almost exactly.
Last Wednesday, I covered the food distribution at St. Anthony's and noticed no issue with my vision. I remember specifically looking through the viewfinder on a couple of photos and lining up how the scene was framed and didn't notice any problem with my vision. That night, I covered a candlelight service in Le Roy, and as soon as I put the viewfinder to my right eye, I knew something was wrong.
I was diagnosed with a detached retina on Friday. Today, surgery.
Again, at least two weeks of facedown recovery. I looked just now at notes to readers in 2016 and I was actually out of work for three weeks. This time, the doctor is saying a week or two of recovery. The detachment in 2016 occurred because I got hit in the eye with a basketball. This time -- it happened on its own. This time, I also got to the doctor faster and am getting treatment sooner.
Issues with Deal of the Day should be directed to Kara Richenberg, kara@thebatavian.com
Press releases and news announcements, as always, should be sent to news@thebatavian.com
Mike Pettinella will help a little more with coverage, which I greatly appreciate, but he has limited availability because of other responsibilities.
We have a big pool of freelance photographers available to help us out now -- many more than in 2016 -- but they all have full-time jobs, families, etc. I'm sure they will step up where they can, but we also encourage community groups to submit their own photos and information about events to news@thebatavian.com.
I will be turning off the scanners in my house for the duration. I don't want to feel tempted to get on the computer to post something or feel frustrated that I can't go out to cover something.
We will inevitably miss some stories. This wouldn't be as much of an issue if we had more help. We would have more help if more people would sign up for Early Access Pass. This circumstance clearly highlights why it is important for you to join Early Access Pass. To join, click here.
In honor of Bob Zeagler, who was well known in Batavia for decorating his Jeep Cherokee for the various holidays throughout the year, especially Christmas, and dressing up in detailed costumes to match, area residents again on Sunday held the Third Annual Bob's Christmas at Batavia First Presbyterian Church.
This year included a Santa's Workshop with presents for kids.
Dr. Virginia Taylor - President, Genesee Community College Foundation, Jeremy and Sandra Liles - Owners, Oliver’s Candies, Honorary Chairs of "Encore" Justin Johnston, Vice President for Development, External Affairs and Admissions at Genesee Community College and Executive Director of Genesee Community College Foundation. Photo Courtesy Genesee Community College
At a gala night celebrating the holiday season -- with the movie theme "White Christmas -- and helping raise funds to benefit students at Genesee Community College through scholarships, Jeremy and Sandra Liles were honored as co-chairs of the 31st Encore event in the Stuart Steiner Forum.
Jeremy Liles is owner of Oliver's Candies in Batavia and Sweet Life Country Store in Elba.
The brief program was followed by a performance of the Genesee Symphony Orchestra.
Tompkins Financial, Presenting Sponsor, "Encore" - Jessica Maguire-Tomidy, Vice President of Operations for Tompkins Insurance; Diane Torcello, President, Tompkins Community Bank Western New York Market Photo Courtesy Genesee Community College
Dr. Jim Sunser conducts the GSO performing "Sleigh Ride" Photo Courtesy Genesee Community College
Photo Courtesy Genesee Community College
Shade Zajac, Conductor of GSO, leads the audience in singing "White Christmas" Photo Courtesy Genesee Community College
Should public officials, especially elected officials, be seeking to have citizens/constituents arrested for expressing their concerns over the conduct of public business (in this case, how courses are taught)?
Provided that the dialogue is respectful, fair and reasonable, of course not. The Board and I regularly receive emails from parents in which the dialogue is cordial and respectful.
In this particular case, however, we responded to a situation that called for a firm response. The Board of Education received numerous emails in a very short period of time from Ms. Long with inappropriate and inflammatory language, including one that said, '"Fuck you all. You all are jokes. You call yourself educators. You reap what you sow," and we had no indication that they were going to cease until the issue was resolved to the complete satisfaction of Ms. Long—which we could not do after numerous attempts to find a qualified teacher. In addition, she explicitly indicated that the Board should "Look forward to more messages every single day..."
In Ms. Long’s case, she received two emails from our Board Vice President and two emails from me, so her concerns were in fact heard and responded to in a timely and respectful manner.
While Ms. Long initially stated her concerns in a respectful manner, they quickly escalated.
Are you concerned that her arrest may have violated her constitutional rights?
We brought the concerns to the attention of the Batavia Police Department, and an officer looked into it and determined that her behavior warranted the arrest.
It is the job of the courts and legislature to determine if these laws violate constitutional rights, and while some might disagree with the law’s reach, it continues to be a valid law in New York State.
As educators, are you concerned that her arrest sends the wrong message to students about civil rights?
No, there is no concern regarding the message sent to students about civil rights. This incident actually serves as an educational opportunity. We want our students to learn the importance of engaging in civil discourse in a respectful, reasonable, and fair manner.
Unfortunately, Ms. Long's approach did not reflect these values, which are essential in public education and have been upheld for decades. As an educator and leader, my role includes actively listening to all members of our community and striving to foster mutual understanding and respect.
What balance do you think should be struck in regards to a parent/citizen/constituent raising concerns and responding when they feel like their concerns are not being heard? Any suggestions for not restricting First Amendment rights while avoiding harassment (in the context of the question, in common use of the word, not the legal definition)?
There are channels that individuals can follow when addressing their concerns, which our District and Board of Education members consistently follow and encourage.
To be clear, Ms. Long’s concerns were heard, again as evidenced by my response and that of our Board Vice President. BMS Principal Nate Korzelius also corresponded with her.
In fact, due in part to her concerns, we course-corrected and made a few changes to the way the online Spanish class was being taught—changes which Ms. Long acknowledged and appreciated.
Should public officials be shielded from annoying and upsetting speech?
No, not at all, but when it crosses the line, as it did in Ms. Long’s case, there are laws on the books that are designed to prevent this type of inappropriate behavior, as well as the BCSD Code of Conduct, where parent behavior is also addressed.
Our Board of Education and our District communicate and listen to our families and students every single day. Is every single situation resolved to the satisfaction of all? Of course not—that is nearly impossible. And again, in Ms. Long’s case, we responded to her concerns, and addressed them to the best of our ability in a timely and respectful manner.
As a school district, we deeply value the rights of parents and community members to express their concerns and opinions. We understand and respect the importance of open dialogue and encourage our community to actively participate in discussions about our schools' operations and policies.
However, it is equally important to maintain a respectful and safe environment for everyone in our school community, including our board members and staff. While we fully support the right of individuals to ask questions and hold our school leadership accountable, this does not extend to the point of harassment or the use of inappropriate and inflammatory language.
In this particular case, our decision to involve legal action was not taken lightly. It was a response to a pattern of communication from the parent in question that had escalated beyond acceptable norms of civil discourse. Our actions are in no way intended to infringe upon civil rights or to discourage constructive feedback and engagement from our community. Instead, they are a necessary step in protecting the well-being and safety of our school board members and staff, and upholding a standard of respect and civility in our communications.
We remain committed to transparency and accountability in our operations and continue to welcome and value input from our community provided it is expressed in a manner that respects the dignity and rights of all individuals involved.
John Marucci:
Should public officials, especially elected officials, be seeking to have citizens/constituents arrested for expressing their concerns over the conduct of public business (in this case, how courses are taught)?
Our decision was not about seeking charges against a citizen. Instead, it was a necessary response to escalating inappropriate emails despite our attempts at dialogue.
We value and address all respectful and constructive conversations with parents and community members.
In this specific instance, it was essential for us to take a firm stance to protect our administration and staff from unnecessary harassment; we could not stand idly by, and therefore, we made the decisive choice to speak up and act in defense of our school community's well-being.
Are you concerned that her arrest may have violated her constitutional rights?
As a Board, we respect the legal process and constitutional rights. Our role was to report an escalating concern; the legal system, guided by New York State law, determines the rights and violations. We trust in this process and its ability to uphold the law and protect rights.
As educators, are you concerned that her arrest sends the wrong message to students about civil rights?
There's no concern about a wrong message on civil rights. This situation highlights the importance of respectful and civil discourse when expressing concerns.
Our entire community, including the Board, administration, teachers, staff, and parents, are working together to foster a thriving and supportive educational environment. To do this, we must engage in more constructive conversations.
What balance do you think should be struck in regards to a parent/citizen/constituent raising concerns and responding when they feel like their concerns are not being heard? Any suggestions for not restricting First Amendment rights while avoiding harassment (in the context of the question, in common use of the word, not the legal definition)?
We believe in open, respectful dialogue with all community members.
We always strive to balance the need for respectful communication with the right to express concerns, ensuring everyone is heard but within the bounds of civility.
Should public officials be shielded from annoying and upsetting speech?
Freedom of speech is a cornerstone of our community values, but it comes with the responsibility to maintain a respectful and safe environment.
While we listen and respond to all concerns, there is a line where speech becomes disruptive or harassing.
Our actions, in this case, were to protect the well-being of our school community and uphold a standard of respect and civility, not to suppress free speech or discourage community engagement.
Batavia City School District, District Office. Photo by Howard Owens.
Free speech and the right to petition your government over grievances: two rights clearly protected in the United States by the First Amendment.
But when does complaining to government officials cross the line into harassment?
That's a high bar to cross, and should be, according to Constitutional scholar Jared Carter.
Carter is counsel with the Cornell Law School First Amendment Clinic, based in Ithaca, and a professor of Law at Vermont Law and Graduate School. Carter specializes in First Amendment cases.
Wherever that line is between protected speech and harassment, a Batavia mother who became upset in November with how her son's Spanish class at the Middle School was being taught didn't cross it, Carter told The Batavian after reviewing available documents.
The Batavian provided him with documents received from Batavia City Schools, which included emails sent by Kate Long to Superintendent Jason Smith, School Board Vice President John Reigle, along with other district officials, and the charging documents obtained from Batavia City Court.
The Charge Long, 39, mother of three children, was issued a summons in November and charged with a single count of harassment in the second degree, a violation of Penal Law 240.26(3), which reads:
He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
Carter said the language of the statute is too vague and overly broad to fairly apply to speech and is the same language that was once part of the state's aggravated harassment law, which was struck down by a federal court as unconstitutional in 2014.
The former aggravated harassment statute dealt specifically with spoken and written communication that was likely to "cause annoyance or alarm ... for no purpose of legitimate communication."
In People v. Golb, the court ruled that the former statute violated both the state Constitution and the Bill of Rights.
A similar case, People v. Dietze, struck down Section 240.25 dealing with language that was abusive or obscene with "the intent to harass, annoy, or alarm another person."
In the Golb case, the court held that both cases examined state statutes and said both failed to provide necessary limitations on the scope of communications that were criminally prosecuted.
"They're (prosecutors) skating on very thin constitutional ice, if any ice at all," Carter said of the arrest and prosecution of Long. "The First Amendment robustly protects Freedom of Speech, and the freedom to criticize government action. That would include criticizing the way that a school handles itself. Now, are some of her emails obnoxious? Perhaps. But the First Amendment very clearly, in my view, protects even obnoxious and, quite frankly, ugly speech, and unless speech fits into one of the very narrow few exemptions to the First Amendment, then it's going to be protected."
Carter said while we're talking about different statutes, they're essentially the same exact language that makes the harassment 2nd statute, when it involves prosecuting speech, is not likely to be found Constitutional if challenged.
Chain of Emails The trail of events that led to Long's charge began in the middle of September when Batavia Middle School Principal Nate Korzelius informed parents that the teacher originally assigned to teach Spanish would be taking a long-term leave of absence. He said the district conducted a comprehensive search to find a certified Spanish substitute but was unable to find a qualified teacher to take over the class.
Instead, he said, "We will utilize an online program called AcceleratedU. This program has been thoroughly vetted and widely used by students nationwide, demonstrating its effectiveness in enhancing students' learning experience."
He invited parents to contact school officials with any problems or concerns.
A couple of weeks later, according to emails obtained from the district through a Freedom of Information Law request by The Batavian, Kate Long did express her concerns.
She said AcceleratedU was not a "long-term solution" for a sub.
"I think by now, you know this based on the grades of students," she wrote in an email to school officials on Nov. 1.
"The school needs to start looking for a long-term sub and put some actual effort into it," she wrote. "I'm getting pretty sick of spending every single evening being my son's unpaid Spanish teacher. Oh yeah, and I don't get a break on my taxes, either."
Superintendent Jason Smith responded the next morning and wrote, "We fully understand that there have been concerns with this, and despite our efforts to find a sub, including speaking with three retired teachers, networking across several counties for candidates, we literally had no one apply or who was even interested. There is, in fact, a severe shortage of Spanish teachers."
He also said the district had contacted the software company several times with complaints about the program, and while the company responded, "We know issues remain."
Long was not satisfied with the response and began a series of emails, often snarky, accusing district officials of not caring, of not doing enough, and of her role as an "unpaid" teacher.
She sent 16 emails over eight days. (The charging documents say 12 emails over eight days, but The Batavian counted 16 emails sent by Long in response to its FOIL request.)
Long, who studied Spanish in college and told district officials she lived for a year with a Spanish-speaking family, had specific complaints about grammatical errors she found in the program.
On Nov. 3, the board's vice president, John Reigle, responded and again reiterated the efforts undertaken by the district to hire a Spanish sub and noted that Smith had replied to her email the day before and invited her to meet with school officials.
That night, she wrote district officials and board members and said, "Hope you all are sleeping very nicely every night. I'm not. Look forward to more messages every single day that you lack to get a Spanish teacher."
She wrote individually to Reigle and said, "What a very eloquent way to say, 'I don't care.' Thanks a lot. That was sarcasm. Look forward to more emails until you DO SOMETHING."
In all, she sent 11 emails on Nov. 3 alone, concluding one that read, "I guess it would have been in my best interest to say, 'I don't care,' like all of you."
In his sworn complaint, Board President John Marucci quoted from Long's second-to-last email, sent on Nov. 8 at 9:37 p.m.
"Fuck you all. You are all jokes. You call yourselves educators. You reap what you sow.”
Marucci wrote, in his statement, that Long was complaining about online learning of Spanish in her emails but also stated that she sent "these emails with no legitimate meaning or purpose to the point that we as the City of Batavia School Board of Education feel like we're are being harassed by Kate Long by her alarming and annoying emails. I would like to pursue any and all legal charges against Kate Long."
Political Speech Carter said Long's emails are political in nature, seeking correction to what she believes is a wrong perpetrated by a government body and is, therefore, protected speech.
"I think it's fair to say that is some of the most protected speech that there is," Carter said. "I'm not saying at some point, you can't have emails becoming harassment. But I think 16 emails over the course of eight days? I don't see how we've crossed that line. And I think courts are going to look at it very skeptically if she were indeed to be prosecuted."
The Batavian emailed several questions to District Attorney Kevin Finnell. We wanted to know if Batavia PD consulted with his office prior to the arrest of Long and if he had any Constitutional concerns about the case.
"Our office does not generally participate in the investigation of criminal matters," Finnell said. "While we remain available to consult with law enforcement during an investigation, my office did not offer any input or advice in this particular case. Even in cases where we do offer advice during an investigation, the choice of what offense(s) to charge is ultimately determined by law enforcement."
As for the Constitutional issue, Finnell said he and all of his ADAs are sworn to uphold the Constitution and are mindful of that in prosecuting every case.
In 2015, former District Attorney Lawrence Friedman, in response to the Golb ruling, sent a memo to local law enforcement warning the departments to no longer arrest people under the portion of the aggravated harassment law that was struck down. He did not raise concerns about the similar language contained in the harassment 2nd statute, and Finnell noted that there is, in fact, a difference between the statutes.
In the Dietz and Golb cases, Finnell said, the courts were reviewing statutes that dealt specifically with speech.
"The statute charged here is different in that it does not target pure speech but rather proscribes behavior," Finnell said. "It is a violation of Penal Law 240.26(3) to engage in a course of conduct or repeatedly commit acts which serve no legitimate purpose and which have the effect of alarming or seriously annoying the targeted individual. While that conduct could include speech, it is the act or conduct itself that constitutes a violation of law."
Carter said that calling Long's emails "conduct" bypasses the fact that she was engaging in speech, and no matter what other word you apply to it, whether you describe hitting the send button an email as "conduct," it's still speech.
"I don't think that's going to carry a lot of water," Carter said. "These are emails, and there's plenty of case law out there that talks about expressive conduct, which I don't even think this is, I mean, these are emails, this is communication, plain and simple. And I just don't think they're going to be able to convince a court, and quite frankly, the material that you sent that the district attorney shared, to my mind -- I just don't see this being prosecuted. I don't know how you could possibly criminalize 16 emails, even one that used a cuss word and be consistent with the First Amendment under a harassment statute, the bulk of which I think has been essentially struck down."
Cases that involve the Supreme Court upholding conduct as speech:
Stromberg v. California, which, in 1931, protected as free speech, the right to display a red flag;
United States v. O’Brien, which, in 1968, protected conduct that conveys a message in a case where a war protester burnt his draft card;
Texas v. Johnson, in 1989, protected flag burning as political expression.
District Response The Batavian also asked Superintendent Jason Smith and Board President John Marucci questions regarding the Constitutional issues raised by the case.
Both said they thought Long's emails crossed a line, and they turned to the police to help bring the communications to a halt. Smith said it is up to the justice system to decide whether Long's rights have been violated but that she was arrested within the scope of existing state law.
Marucci said he and the board respect the legal process and Constitutional rights but that they were facing an escalating concern and needed the assistance of the legal system, which will decide how best to deal with the case.
"Our decision was not about seeking charges against a citizen," Marucci said. "Instead, it was a necessary response to escalating inappropriate emails despite our attempts at dialogue. We value and address all respectful and constructive conversations with parents and community members. In this specific instance, it was essential for us to take a firm stance to protect our administration and staff from unnecessary harassment; we could not stand idly by, and therefore, we made the decisive choice to speak up and act in defense of our school community's well-being."
Smith said there are proper ways for residents to raise issues with the administration and school board, and the district respects the right of residents to disagree with their decisions. He doesn't believe, he said, that administrators and elected officials should necessarily be protected from annoying and upsetting speech but that this was an exceptional case. He said it is important to maintain a respectful and safe environment for everyone in the school community.
"While we fully support the right of individuals to ask questions and hold our school leadership accountable, this does not extend to the point of harassment or the use of inappropriate and inflammatory language," Smith said. "In this particular case, our decision to involve legal action was not taken lightly. It was a response to a pattern of communication from the parent in question that had escalated beyond acceptable norms of civil discourse. Our actions are in no way intended to infringe upon civil rights or to discourage constructive feedback and engagement from our community. Instead, they are a necessary step in protecting the well-being and safety of our school board members and staff and upholding a standard of respect and civility in our communications."
To read the full Q&A with both Smith and Marucci, click here.
Prior Restraint Among the documents obtained by The Batavian from the school district is a letter from Smith to Long. It is dated Nov. 10 and informs Long that the matter has been referred to Batavia PD. It's the first time, at least in the communications obtained by The Batavian, that anybody with the district notified Long that officials found her emails annoying.
In it, Smith informs Long that her email address has been blocked, prohibiting her from communicating with any other district official except Smith, that she is not to contact any other district employee, and that she may not use the district's app, Parent Square, to contact staff members.
Carter said this letter is also Constitutionally problematic, though the case law on the matter is not settled.
"I could see a strong argument that blocking a member from the public from being able to send emails to government officials would have First Amendment implications," Carter said.
A case against former President Donald Trump regarding his practice of blocking people on Twitter never made it to the Supreme Court because he left office before the matter was settled. A lower court had previously ruled against Trump, saying he couldn't block people from using a public forum to criticize him.
We couldn't find any cases dealing specifically with individual emails to the government or elected officials or using a government-run platform such as Parent Square.
The letter could potentially constitute "prior restraint." Courts have consistently held that the government cannot restrict speech and publication, regardless of any concern about future communication, that has not yet occurred.
It's this block to communication, along with Long's three children still attending school, that may be why her attorney, Tom Trbovich, from Buffalo, seems hesitant to fight a First Amendment case.
He said he would love to have a case he could take to the Supreme Court and win. It would help his career. But his first obligation is to his client and what is in the best interest of her and her family. He said while he's willing to do whatever his needed, it's also important to be realistic about the situation.
"As a secondary goal, I want to make sure that, you know, it'd be nice to make sure that relations and stuff like that with the families in the school workout, as well," Trbovich said after Long's initial court appearance, where she entered a not-guilty plea. "I want to make sure it's a win-win situation for everybody. And it's just going to take a little bit of time. I don't want to just do something quick in court. I want to do what's in the best interest of everybody."
Scotty DiMartino, Cassie Piccione and Tom Burke used their stagecraft experience to put on a light show at DiMartino's residence on Woodrow Road in Batavia on Saturday evening.
Le Roy entered the second quarter in their Friday night Boys Basketball matchup against Dansville down 12-10 and then Aaric Luce got hot, Le Roy took the lead and never looked back.
Luce scored 11 points in the second quarter, hitting a trio of three-pointers to give the Knights a 30-21 halftime lead.
Le Roy went on to win 61-43.
Luce finished with 11 points. Merrit Holly scored 28 points and had 11 rebounds. Matthew Hockey scored nine points and had three assists.
