Appeal of DAWN and JAY KIPPEN from action of the Board of Education of the City School District of the City of Rome regarding the employment of a superintendent and application for the removal of Jeffrey P. Simons as superintendent.

Decision No. 15,919

(May 18, 2009)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Craig M. Atlas, Esq., of counsel

Petitioners challenge the appointment by the Board of Education of the City School District of the City of Rome (“board”) of Jeffrey P. Simons (“Simons”) as superintendent of schools and seek Simons’ removal.  The appeal must be dismissed and the application for removal must be denied.

Prior to August 1, 2007, Simons served as assistant superintendent for curriculum and instruction, then as deputy superintendent in the Rome City School District.  On June 6, 2007 the board appointed him superintendent, effective August 1, 2007.  At the time of this appointment, district regulation 3015.1 required, in pertinent part, that a superintendent in the district “possess ... [f]ull certification as a teacher” and “[c]ertification as a School District Administrator”.

Education Law §3003 requires only that, to be eligible for the position of superintendent of schools, an individual must possess a “superintendent’s certificate”.  Pursuant to §80-2.4 of the Commissioner’s regulations, which is applicable to Simons’ appointment, a “school district administrator” certificate constitutes a superintendent’s certificate within the meaning of §3003. 

On February 29, 2008, petitioners submitted a request, pursuant to the Freedom of Information Law (“FOIL”) (Public Officers Law, Article 6) to the State Education Department seeking information regarding Simons’ certification.  On March 25, 2008, petitioners received a response indicating that Simons holds a valid permanent certificate as a School District Administrator and previously held other provisional certificates which have since expired.

Thereafter, petitioners commenced this appeal, challenging the board’s appointment of Simons and seeking his removal.  Petitioners’ request for interim relief was denied.

Petitioners claim that the board’s appointment of Simons as superintendent is improper, as it does not comply with district regulation 3015.1, in that Simons does not possess certification as a teacher.  Petitioners seek Simons’ removal from his position.  The board asserts that the appeal is untimely, is moot and fails to state a claim.  It also maintains that there is no basis for Simons’ removal.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442). 

The board contends that the 30-day time period in which to challenge Simons’ appointment ran from June 6, 2007, the date of his appointment, thereby rendering the appeal untimely.  However, the gravamen of petitioners’ challenge to Simons’ appointment and assertion that the board violated district regulation 3015.1 is that he is not qualified to serve as superintendent because he lacks certification as a teacher, as required by the board’s regulation.  A district’s employment of an unqualified individual, if unlawful, is a continuing wrong, subject to complaint at anytime (Appeal of Boyle, 46 Ed Dept Rep 496, Decision No. 15,574; Appeal of Brown, 39 id. 343, Decision No. 14,255).  Therefore, I will not dismiss the appeal as untimely.

To the extent that petitioners challenge Simons’ appointment as contrary to district regulation 3015.1, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).

The board submits evidence that it revised district regulation 3015.1 on August 13, 2008 to eliminate the requirement that an individual possess full certification as a teacher as a qualification to hold the position of superintendent.  The regulation still requires that an individual possess certification as a School District Administrator.[1]  Petitioners’ challenge to Simons’ qualifications under district regulation 3015.1, therefore, is academic.

Turning to petitioners’ application for Simons’ removal, a member of the board of education or a superintendent of schools may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or superintendent has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Schenk, 47 Ed Dept Rep 375, Decision No. 15,729; Application of Kavitsky, 41 id. 231, Decision No. 14,672).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioners contend that Simons’ removal is warranted, alleging that he wilfully violated regulation 3015.1.  However, the challenged action – appointment of Simons as superintendent – is a board action.  As such, any obligation to act in compliance with the regulation vests in the board not the superintendent.  Petitioners, therefore, failed to establish any basis for Simons’ removal. 

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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