Letter Lays Out Legal Case
(7/03/2008) A letter released this week, sent early last month from an attorney for Larry Penny, the East Hampton Town natural resources director, to Supervisor Bill McGintee, reviews legal issues that could become the basis of a lawsuit over the town board’s recent decision to eliminate Mr. Penny’s position by making the Natural Resources Department a division of the Planning Department.
Dozens of people spoke against the idea and in support of Mr. Penny at a June 19 town board meeting; only one supported the idea. An official hearing on the proposal is scheduled for July 19.
Mr. Penny, who has held his position for more than two decades, has called the elimination of an autonomous department overseeing natural resources a “stupid idea,” and vowed a fight to keep his job.
According to the letter, sent by Louis Pechman, a Manhattan attorney, on June 9, comments made by Councilman Brad Loewen regarding problems with Mr. Penny’s management of the department are “defamatory statements impugning his ability to perform a job he has held for nearly 25 years.” Mr. Loewen introduced the measure to change the department to a division.
The fact that Mr. Penny received a 13-percent raise in January belies the alleged problems with his job performance, the lawyer wrote.
Mr. Pechman notes that the proposal was raised at a town board meeting on May 6, five days after an article was published in The Star in which Mr. Penny raised concerns about arsenic in dust blowing from farm fields owned by East Hampton Town onto the East Hampton High School property. He also criticized the school superintendent for not investigating a possible health threat posed by the dust.
“Mr. Penny is protected against retaliation for exercising his free speech rights,” Mr. Pechman wrote, adding that, based on prior case law, Mr. Penny can “establish causation . . . by showing his speech was closely followed in time by an adverse employment decision.”
In addition, citing comments made by Mr. McGintee in a letter to the editor published in the May 26 issue of The Star, and also made at a budget meeting last year, Mr. Pechman raises discrimination claims based on Mr. Penny’s political party affiliation and his age.
Mr. Penny ran for a seat on the town board in 2005, as a Republican. Mr. McGintee and the other members of the town board were all elected on the Democratic ticket.
In his letter, Mr. McGintee calls protests against the town board’s proposal “the usual knee-jerk political reaction from Republican Party operatives,” Mr. Pechman writes, which “casts your decision to eliminate Mr. Penny’s department in a disfavorable light. . . .”
“As party affiliation is irrelevant to Mr. Penny’s role as director of the Department of Natural Resources, his status as a Republican is improper grounds for taking any adverse employment action.”
Comments made by Mr. McGintee during budget talks last year about whether Mr. Penny had plans to retire, and the role he could play with the town should he do so, “raise serious concerns” about whether age played a role in the decision to eliminate his position, Mr. Pechman said in the letter.