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A lawyer’s suit accusing New York Gov. George Pataki’s administration of retaliatory termination will proceed to a federal trial, but in a far more limited manner than the plaintiff would prefer. Chief Judge Frederick J. Scullin Jr. of the Northern District of New York, in a decision last week, is allowing Alan M. Adler to go forward in his First Amendment retaliation claim. However, the chief judge dismissed several claims against former New York Attorney General Dennis C. Vacco that provided the launch pad for the case against the governor and some of his top aides. Chief Judge Scullin said there are issues of fact as to whether Adler was fired in retaliation for litigation that the attorney’s wife, former Assistant Attorney General Sue H.R. Adler, had pursued against Vacco. But he found Adler’s claim that the Law Department conspired with the Executive Department “without any factual basis.” Trial is scheduled for Aug. 5 in Albany, N.Y. Adler v. Pataki, 1:96-CV-1950, is a long-lingering matter centering on political patronage, political vindictiveness, and where those practices intersect. It all began on Dec. 6, 1996, when Alan Adler, an enrolled but not politically active Democrat who had long worked as an attorney in the Office of Mental Retardation and Developmental Disabilities, was fired by the Republican administration of Gov. Pataki. Just before Adler was fired, Mrs. Adler had infuriated Republican Attorney General Vacco. Mrs. Adler was suing the attorney general, claiming that she was forced out of the Department of Law for political reasons. Although she did not prevail in the litigation, she did win several thousand dollars in sanctions and forced disclosure of information and documents that proved politically embarrassing for the Republicans. Alan Adler challenged his ouster on a number of grounds, but the action was dismissed by Scullin on June 23, 1998. The chief judge held that Adler was a policy-maker in his role as deputy counsel for litigation for the Office of Mental Retardation and Developmental Disabilities, and therefore could be fired for any legal reason, including political patronage. Further, Scullin held that even if Adler’s firing resulted from both politics and retaliation for Mrs. Adler’s lawsuit, the action was precluded. But the 2nd U.S. Circuit Court of Appeals reversed, holding that firing a state employee in retaliation for his wife’s lawsuit violates the First Amendment right of “intimate association.” Back before Scullin, the Executive Department defendants, the Law Department defendants and Adler made various motions. In his recent decision, Scullin dismissed part of the case, most notably the portion alleging that Vacco and his top aides conspired with the governor’s staff to fire Adler. “Plaintiff, in effect, is trying to create a conspiracy out of innuendo, unrelated incidents and conclusory allegations …” Judge Scullin wrote. TWO THEORIES However, Scullin is allowing the matter to proceed on two theories. He said there is conflicting evidence on whether Adler was fired simply to make room for a political appointee, as is legally permissible, or in retaliation for his wife’s conduct. Additionally, Scullin is allowing to proceed — for now — a claim under Mental Hygiene Law that the commissioner neglected to fulfill his obligations in selecting staff and instead yielded to the dictates of the Pataki administration. Scullin said he is “puzzled as to the basis” of that allegation, but “rather than dismiss this claim outright” will provide the parties with an opportunity to address the issue in pretrial submissions. Appearing were: Mrs. Adler for her husband; Fredric S. Newman and Melissa L. Weiss of Hoguet Newman & Regal LLP in Manhattan for the governor and his aides; and Franklyn H. Snitow and Richard A. Braunstein of Snitow Kanfer Holtzer & Millus LLP in Manhattan for the Department of Law defendants.

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