Appeal of NICHOLAS WASHBURN from action of the Board of Education of the Ellenville Central School District regarding termination of a probationary appointment and denial of tenure.

Decision no. 16,368

(July 2, 2012)

Lovett & Bellantoni, LLP, attorneys for petitioner, Jonathan Lovett, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, John M. Donoghue, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the termination of his probationary appointment and denial of tenure by the Board of Education of the Ellenville Central School District (“respondent”).  The appeal must be dismissed.

During the 2009-2010 school year, petitioner was serving the third year of his probationary appointment as a physical education teacher in respondent’s school district.

By letter dated May 7, 2010, the superintendent notified petitioner of four instances on February 23, 2010, April 21, 2010, April 24, 2010 and April 27, 2010 when petitioner reportedly failed to follow administrative directions and/or the district’s Employee Handbook.  The instances involved access to school buildings, cell phone use and transportation of students.  The letter noted that petitioner’s failure to follow such directives and guidelines might lead to a recommendation to terminate his probationary appointment.

By letter dated May 20, 2010, the superintendent notified petitioner that, at a meeting of the board to be held on June 22, 2010, she would recommend termination of his services as a probationary teacher, effective July 22, 2010.

By letter dated May 24, 2010, petitioner requested a written statement of the reasons for the superintendent’s negative recommendation.  By letter dated May 26, 2010, the superintendent provided such statement indicating that her recommendation was based on petitioner’s failure to follow directives and practices and set forth instances when petitioner entered district schools, sometimes with a student, when the buildings were closed; failed to document his presence in the school on non-school days; transported students without proper authorization; and failed to obtain required paperwork and follow required procedures prior to permitting students to participate on an athletic team.

On May 28, 2010, petitioner filed a notice of claim against the district alleging that, on May 3, 2010, the superintendent defamed him by making a false police report of an alleged inappropriate relationship with a student, later determined to be unfounded.  On June 9, 2010, petitioner’s attorney wrote to the board members noting the incident giving rise to the notice of claim, and arguing that the reasons for the negative recommendation proffered by the superintendent in her May 26, 2010 letter were inaccurate and pretextual.

On June 22, 2010, respondent terminated petitioner’s probationary appointment, effective July 22, 2010, and petitioner was notified by letter dated June 28, 2010.  This appeal ensued.

Petitioner claims that the reasons set forth in the superintendent’s May 7, 2010 letter as a basis for termination of his probationary appointment are false and pretextual.  Petitioner alleges that he was never told administrative approval was required prior to entering the school building on certain days and that he was unaware of any required sign-in procedure.  Petitioner maintains that other teachers transport students in their personal vehicles.  He also argues that he followed district policy in permitting students to attend and watch sports practice sessions, but not participate on a team, prior to obtaining required paperwork.  Finally, petitioner contends that respondent’s determination to deny him tenure violated his right to due process and was arbitrary, capricious and irrational.  Petitioner requests that I annul respondent’s termination of his probationary employment and grant him tenure retroactive to June 22, 2010.

Respondent contends that petitioner has failed to state any procedural violation of Education Law §3031 regarding the termination of his probationary appointment and has established no basis on which to retroactively grant him tenure.  Respondent maintains that petitioner has failed to exhaust his administrative remedies under the collective bargaining agreement and that an appeal to the Commissioner is not the proper forum to adjudicate a constitutional claim.

Initially, I must address two procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent asserts as an affirmative defense that petitioner has failed to exhaust his administrative remedy under the collective bargaining agreement.  However, other than this conclusory allegation, respondent sets forth no further facts or any reference to applicable provisions of the agreement.  Respondent, therefore, has not established its defense. 

Turning to the merits, generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law (Education Law §3012 [1]; Matter of Mahoney v. Mills, 29 AD3d 1043; Appeal of Hodge, 49 Ed Dept Rep 183, Decision No. 15,993;  Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of McBeth, 43 id. 52, Decision No. 14,913).

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).  

Petitioner asserts that respondent’s decision to terminate his probationary employment and deny him tenure violates his right to due process.  Education Law §3031 sets forth the procedures required prior to a determination to deny tenure.  Petitioner has failed to allege any procedural violation of Education Law §3031 or any other applicable statute.  Moreover, the record reflects that respondent complied in all respects with the statutory procedural requirements for terminating a probationary employee and denying tenure.  Petitioner also has failed to establish that he was terminated for a constitutionally impermissible reason or in violation of statute.  Having failed to articulate a clear legal right to the relief requested, petitioner has failed to meet his burden and his appeal must therefore be dismissed.

Finally, to support his claim that respondent’s determination is arbitrary, capricious or unreasonable, petitioner submits his June 9, 2010 response to the superintendent’s May 26, 2010 letter which detailed the reasons for her recommendation to terminate his appointment.  However, the record before me indicates that, during petitioner’s probationary appointment, respondent documented instances in which petitioner failed to follow district policy and practices.  Therefore, I cannot conclude that respondent’s determination to terminate petitioner’s probationary appointment lacks a rational basis in the record, and I decline to substitute my judgment for that of respondent.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.