AMHERST
Fired Amherst assistant town engineer files second lawsuit
Published: June 24, 2009, 12:30 am
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Amherst’s former assistant town engineer has filed his second lawsuit to try to get his job back after being fired, rehired, then fired again by the town on the grounds that he failed to meet the town’s residency requirements.
James I. Johnson was fired — for the second time — by the Town Board on Feb. 23.
The 13-year town employee was first terminated by Supervisor Satish B. Mohan last April. The town has maintained that Johnson actually lives in the Village of Elba with his wife and children, not at an Amherst apartment address, as Johnson contends.
However, State Supreme Court Justice Timothy J. Drury ruled in December that Johnson was improperly fired and was owed reinstatement to his job as well as back pay, benefits and interest.
While the town made a credible case that Johnson might have violated the town’s residency requirements, Drury stated, Mohan did not have the legal authority to unilaterally fire Johnson without the Town Board’s consent. Johnson was reinstated Feb. 2 to his $84,845 position.
On Feb. 23, the board unanimously approved a resolution stating that James I. Johnson “failed to provide adequate documentation to demonstrate that he is a resident of the Town of Amherst” and therefore is not in compliance with the town’s residency requirements.
Johnson’s lawyer, Barry J. Donohue, stated that the Town Board ignored the extensive documentation provided to the board regarding Johnson’s residency.
While Johnson’s wife and children live in Genesee County’s Village of Elba, Johnson lives in his Amherst apartment five days out of seven, Donohue said. Other court cases have shown that this is sufficient to address any residency requirement, he added.
The lawsuit filed with the Erie County clerk’s office this month includes exhibits such as copies of his apartment lease, driver’s license, passport and jury duty certificates. Some of the documents note his Amherst apartment address, while others refer to an Amherst post office box.
Human Resources Director Robert P. McCarthy said that while Johnson did provide documents to the Town Board in support of his position that he’s a town resident, the vast majority was outdated. He also said those documents do not prove that Johnson was “domiciled” in Amherst.
A person’s domicile is regarded as the person’s “true, fixed, principal and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” The town’s laws were changed in 2006 to reflect that a person needs to be domiciled in town, not just maintain a residence there, McCarthy said.
Donohue said Johnson has provided all the information required to prove his domicile. It’s the town’s burden to convince a judge that Johnson is committing fraud, he said.
stan@buffnews.com
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