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A school board member who claimed political opponents got her fired by making up a story that she sprinkled “voodoo” powder outside the door of an adversary has had her lawsuit reinstated. The 2nd U.S. Circuit Court of Appeals ruled that Amy Velez, a New York City Community School District Board member, had a “liberty interest” in her position on District Board 1, and could continue her suit against Schools Chancellor Harold O. Levy and several other defendants. The circuit also found that Velez had stated a plausible First Amendment claim against Levy in Velez v. Levy, 03-7875. As a member of the board beginning in May 1999, Velez was subject to removal by the chancellor under New York Education Law �2590-1(1)(a) for failing “to comply with any applicable provisions of law, by-laws, rules or regulations, standards, directives and agreements.” Under the law, the chancellor must provide an “opportunity for conciliation” prior to removal unless the board member has engaged in criminal conduct or poses a threat to the “safety or welfare” of a student or staff member. According to fellow board member Nancy Ortiz, Velez left a Jan. 23, 2002, board meeting after a sharp disagreement on diversity policy and went to the office of Helen Santiago, Superintendent of District 1, and sprinkled a pink, powdery substance in front of Santiago’s office door. She also allegedly dropped a plastic bag containing additional powder. Ortiz and fellow board members Jacob Goldman and Joyce Early wrote to Levy accusing Velez of sprinkling the powder. The trio characterized her actions as criminal conduct and asked that she be removed. Their charges were reported in the Daily News two days later, with the reporter noting the alleged sprinkling of “foul smelling,” “voodoo” powder. TV and radio stations then picked up the report. The Chancellor’s Office of Special Investigations issued a report in February 2002 stating the accusations were substantiated and, on March 15, 2002, Levy removed Velez from the board. She successfully appealed the decision to the Board of Education, which found the investigation “incomplete in its conduct and illogical in its conclusions.” Velez was reinstated in June 2002. She filed suit in the Southern District, claiming deprivation of liberty and property in violation of the Fourteenth Amendment’s procedural and due process requirements; unlawful retaliation for political positions and expression in violation of the First and Fourteenth amendments; and unlawful “seizure” of her elected office in violation of the Fourth and Fourteenth amendments. Southern District Judge John Koeltl dismissed the case, finding that Velez had failed to state a colorable cause of action and, in the alternative, that the board members, the investigators and Levy were protected by qualified immunity. At the 2nd Circuit, Judges Guido Calabresi, James Oakes and Ralph Winter first agreed with Judge Koeltl, albeit on different grounds, that Velez did not possess a property interest in her elected position. But the panel disagreed on Velez’s liberty interest claim, which was based on the stigma she allegedly suffered from being publicly accused of criminal behavior together with the loss of her position — all without sufficient process. ‘STIGMA-PLUS’ CLAIM Writing for the panel, Judge Calabresi said a �1983 liberty interest claim of this sort is commonly referred to a “stigma-plus” claim, which requires the plaintiff, under 2nd Circuit case law, to allege a defendant uttered a false statement injurious to her reputation and “some tangible and material state-imposed burden � in addition to the stigmatizing statement.” Typically, Calabresi said, the stigmatizing statement comes from the same “actor who imposes the ‘plus,’ such as when a government employer defames an employee in the course of terminating the employee.” But here, he said, Velez “complains of a less single-sourced injury” — the board members created the “stigma” and Levy created the “plus,” a combination that would appear to be a fatal flaw in Velez complaint. However, the judge said, while the circuit has never directly addressed the question, other circuits have approved of “stigma-plus” claims where the “plus” is imposed separately from “explicit stigmatizing statement.” “We now hold that perfect parity in the origin of both the ‘stigma’ and the ‘plus’ is not required to state the infringement of a ‘stigma-plus’ liberty interest,” he said, because the important factor was the proximity between the statement and the action taken. And taking the Velez allegations as true, he said, Velez’s “stigma-plus liberty interest” was implicated and she had adequately asserted the deprivation of such an interest. Velez was also entitled to a pre-deprivation hearing before Levy ordered her removed, which states a valid claim against the chancellor as a “high-ranking official,” under the due process clause, he said, but not against the individual board members or the investigators. While the circuit went on to reject Velez’ substantive due process claims, it said she had stated a valid claim under the First Amendment, which Judge Koeltl had dismissed. Koeltl had found that Velez’s speech as a community school board member was not protected because the political affiliations of “policymakers” are not constitutionally protected from government retaliation and the 2nd Circuit held in Camacho v. Brandon, 317 F.3d 153 (2003) that elected officials are “policymakers.” But Calabresi said Camacho, which dealt with the firing of a legislative aide to a Yonkers City Council member, supposedly in retaliation for the member’s public statements, did not apply to this case. Here, the judge said, Velez fell “into a category — an elected officeholder removed from her office, allegedly in retaliation for her (presumably faithful) representation of her constituents — as to which no exception from general First Amendment protections has heretofore been made.” Therefore, he said, the First Amendment claims survived against Levy because “extending the policymaker exception to this case, and thereby allowing the Chancellor to remove board members on political grounds, would undermine the very object of the position Velez occupies.” James I. Meyerson represented Velez. Assistant Corporation Counsels Stacy Laine Francolla and Francis F. Caputo represented the city.

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