Appeal of SANDRA EMERLING from actions of the Board of Education of the Springville-Griffith Institute Central School District regarding a superintendent’s contract and application for the removal of the members of the Board.

Decision No. 16,352

May 10, 2012

Hodgson Russ, LLP, attorneys for respondent, John J. Christopher, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals actions of, and seeks to remove, the Board of Education of the Springville-Griffith Institute Central School District (“respondent” or “board”) regarding a superintendent’s contract.  The appeal must be dismissed and the application denied.

In October 2008, Vicki A. Wright commenced employment with the district as superintendent.  Paragraph 16 of the Contract of Employment (“contract”), entitled “Termination,” listed four reasons for which the employment relationship between the superintendent and the board could be terminated:  a) disability of the superintendent; b) written resignation of the superintendent; c) termination upon agreement; and d) discharge for cause.

On December 28, 2010, the board and the superintendent entered into a Separation Agreement, Release and Waiver (“agreement”), effective January 3, 2011.  The agreement called for, among other things, a payment of $89,500 in full satisfaction of the district’s financial obligations to the superintendent, in exchange for her resignation and release from all claims against the district.

Prior to the execution of the agreement, petitioner presented a letter and packet of information to the board at its December 20, 2010 meeting, in which she alleged that the superintendent should be terminated for cause without compensation.  Those allegations included, among other things, that the superintendent lied on her employment application and resumé about the nature of her departure and performance in five other districts for which she had worked prior to her employment with respondent; lied about the achievement of “adequate yearly progress” (“AYP”) by schools in the district where she worked immediately preceding her hiring by the board; and lied about when she obtained knowledge about data concerning the district’s Springville Elementary School’s designation as a school in “improvement status” for the failure of its students with disabilities to make AYP.

Petitioner contends that respondent wilfully neglected its duty and misused district funds by offering to buy out the superintendent’s employment contract and by failing to investigate petitioner’s allegations and take corrective action.  Petitioner also contends that the board neglected its duty, violated the Education Law and the Springville Administrators Union contract and lied to the community regarding its handling of events surrounding the forced resignation of the district’s director of health, physical education and athletics.  Petitioner alleges that the board has demonstrated a pattern of wilfully neglecting its duty dating back to 2008, has breached its fiduciary duties to the taxpayers by imprudent financial decisions, including unmerited raises for administrators, and has breached Board Policy 3100, which calls for cooperative school-community relations.  Petitioner seeks the removal of the board for wilful neglect of duty and misuse of funds.  She also asks that I appoint a new board to serve until a special election is held and that I appoint or oversee the process to appoint a new superintendent.

Respondent denies any neglect of duty or misuse of funds, asserts that it acted lawfully at all times, that it met its fiduciary duty by investigating petitioner’s allegations and that the agreement was a reasonable alternative to pursuing the “Discharge for Cause Procedures” in the superintendent’s employment agreement.  Respondent contends that petitioner failed to establish the facts upon which she seeks relief.  It asserts that the appeal must be dismissed as moot, as untimely, for failure to join necessary parties, for lack of service and for improper notice.  Respondent also asserts that petitioner failed to serve some of the exhibits to the petition.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).

Petitioner served the petition upon the district clerk on January 18, 2011.  Accordingly, but for petitioner’s allegations regarding the agreement, which was executed on December 28, 2010, and the board’s acceptance of the treasurer’s report at its January 4, 2011 meeting, all other allegations raised by petitioner concern actions that occurred more than 30 days before the commencement of this proceeding and must thus be dismissed as untimely.

To the extent petitioner seeks to remove individual board members, the application must be denied for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The record indicates that petitioner served only the district, by personally serving its clerk.  There is no indication that any individual board members were served with a copy of the notice of petition and petition.  Accordingly, petitioner’s removal application must be denied.

In addition, petitioner’s application for removal must also be denied because the notice of petition is defective.  The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, petitioner failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).

Turning to the merits of petitioner’s remaining claims, a board of education has broad powers pursuant to Education Law §§1709(13) and (33), and 1804(1) concerning the superintendence, management, and control of a central school district.  In addition, a board of education has the authority to enter into an employment contract with a superintendent including provisions regarding termination (Education Law §§1711 and 1804[1]).  In this case, respondent entered into such an agreement which contained several options for termination.  I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable law (Appeal of Patton, et al. 42 Ed Dept 226, Decision No. 14,832; Appeal of Devany, 41 id. 466, Decision No. 14,747; Appeal of Rider, 39 id. 282, Decision No. 14,238).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

On the record before me, petitioner has failed to meet her burden.  The terms of the contract specifically permit termination by mutual agreement, and respondent’s answer indicates that respondent carefully considered the issues, including weighing the costs of discharge for cause versus a negotiated agreement.  While petitioner disagrees with respondent’s decision not to dismiss the superintendent for cause, she has submitted no reply to refute the board’s statements that it reviewed its options and determined that a separation agreement was more responsible than a protracted dismissal for cause.  Nor has petitioner carried her burden of proof regarding her allegation that the board’s acceptance of the treasurer’s report at its January 4, 2011 meeting was improper.  Accordingly, petitioner has failed to establish any ground for overturning the board’s actions.

In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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