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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].

Letter to Jeffrey F. Swiatek, Esq.

March 2, 2015
Page |2
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.
MODICA & ASSOCIATES, ATTORNEYS

Letter to Jeffrey F. Swiatek, Esq.

March 2, 2015
Page |3
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
SVM
cc:

Steve@ModicaLawFirm.com
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)

MODICA & ASSOCIATES, ATTORNEYS