Appeal of MARTHA A. KAVANAUGH from action of the Board of Education of the Hamburg Central School District, Michael Cornell, as superintendent, and Richard Jetter and Vincent Coppola, former superintendents, regarding teacher discipline.

Decision No. 16,897

(April 11, 2016)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freeman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hamburg Central School District (“respondent board”) to place her on administrative leave and/or suspend her with pay.  The appeal must be sustained in part.

Petitioner is a tenured teacher employed in the Hamburg school district since August 2002.  At its meeting on January 14, 2014, respondent board voted to place petitioner “on paid administrative leave commencing [January 15, 2014].”

By letter dated January 15, 2014, Interim Superintendent Richard Jetter notified petitioner of respondent board’s action and indicated that the board was investigating petitioner’s conduct as a school district employee.  The letter stated, “[w]hile on leave, you are not permitted on District grounds, including any school buildings.”  During that period, petitioner was assigned curriculum projects to complete, apparently from her home.  By letter to petitioner’s counsel, dated October 7, 2014, respondent board’s counsel stated that, “the District’s investigation into [petitioner’s] possible misconduct is ongoing and she will remain on administrative leave in the meantime....You will be advised when the District is prepared to take action on this matter.”  Approximately five months later, at its regular meeting on March 2, 2015, respondent board voted to continue “the suspension” of petitioner “pending further action of the Board of Education.”

It appears from the record that, on June 25, 2015, the district’s new superintendent, Michael Cornell, issued a memorandum to petitioner regarding her performance on the curriculum projects.  The memorandum apparently was placed in petitioner’s personnel file.

As a result of the district’s investigation, on September 2, 2015, respondent board preferred charges against petitioner pursuant to Education Law §§3020 and 3020-a.  Petitioner was served with a notice of the charges on or about September 3, 2015.  The charges set forth in the notice include incompetence/neglect of duty and insubordination.  The record indicates that petitioner requested an administrative hearing on the charges which appears to be pending.  This appeal ensued.  Petitioner challenges respondent board’s action placing her on “administrative leave” on January 14, 2014, and continuing her “suspension” on March 2, 2015, in the absence of disciplinary charges.  Petitioner does not herein challenge the §3020-a charges preferred against her by respondent board that are the subject of the administrative hearing.  Petitioner asserts that, on January 14, 2014, respondent board unlawfully placed her on administrative leave without filing charges against her and, thereafter, on March 2, 2015, unlawfully extended her suspension absent any charges filed.  She contends that such action should be declared null and void.  Petitioner seeks reinstatement to her former position.  She also seeks expungement of any reference to the alleged unlawful suspension or to any disciplinary actions relating to that period of time.  Additionally, petitioner seeks reimbursement of legal fees incurred as a result of the suspension; a declaration that respondent board’s actions violate both the Education Law and the members’ oath of office; a reprimand of respondent board and Superintendent Cornell; and an order directing respondents board and Cornell to publicly apologize to petitioner.

Respondents contend that petitioner’s placement on administrative leave by respondent board was proper in all respects, that petitioner has failed to establish that respondents acted in an arbitrary and capricious manner, and that petitioner has failed to state a claim.  Respondents also assert that the appeal must be dismissed for lack of standing, as untimely, and for failure to join necessary parties.

I will first address several procedural matters.  Initially, I find that petitioner has standing to maintain the appeal.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Respondent board’s action challenged by petitioner clearly affected petitioner directly and she is asserting an adverse effect upon her personal and property rights as a result of being removed from her teaching duties.  Consequently, I find petitioner has standing to maintain the appeal.

I also decline to dismiss the appeal 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).  Although respondents include this defense in their answer in a conclusory manner, they fail to provide any further elaboration and do not address it at all in their memorandum of law.  Petitioner seeks relief herein as against respondents board, Cornell, Jetter and Coppola.  Each has been named in the caption of the appeal and served with a copy of the notice of petition and petition.  Consequently, it appears that all parties necessary to a determination of the appeal have been properly joined and dismissal for failure to do so is not warranted. 

With respect to respondents’ objection as to timeliness, the appeal must be dismissed only in part, as untimely.  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). 

To the extent that petitioner complains of the propriety of the June 25, 2015 memorandum that was placed in her file and pertains to the assignments she was given while on leave and/or suspension, petitioner’s appeal is untimely.[1]  Petitioner commenced this appeal approximately three months after the issuance of the memorandum and offers no legal excuse for the delay.  Accordingly, that part of the appeal is untimely and must be dismissed.

However, petitioner’s challenge respondent board’s action on January 14, 2014 and March 2, 2015 placing her on leave and/or suspending her with pay, however, will not be dismissed as untimely, as such action, if proven, would constitute a continuing wrong.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).

In this appeal, petitioner alleges that she was unlawfully placed on administrative leave and/or suspension with pay without any charges preferred against her under Education Law §3020-a.  Suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board (Education Law §3020-a).  Suspension of a tenured teacher without the filing of such charges is ultra vires and, thus, constitutes a continuing wrong (see Appeal of McCall, 33 Ed Dept Rep 148, Decision No. 13,005).  Consequently, I decline to dismiss that part of petitioner’s appeal challenging respondent board’s January 14, 2015 and March 2, 2015 actions as untimely.

Turning to the merits, on January 15, 2014, respondent board voted to place petitioner on paid “administrative leave” and petitioner was notified by respondent Jetter that the purpose of such action was to “investigate petitioner’s conduct as a district employee.”  Petitioner remained on administrative leave for over a year with no charges preferred against her.  Petitioner was assigned curriculum projects but was not permitted on district grounds at any time.  She was also advised that there was no need to consult with any of her colleagues.  More than one year later, on March 2, 2015, respondent board voted to continue “the suspension” pending further board action. Respondent board did not prefer §3020-a charges against petitioner until September 2015.

As noted above, the suspension of a tenured teacher requires the board of education to file written charges within a reasonable amount of time, and that the suspension without the filing of charges is ultra vires and in violation of the individual’s tenure rights (see Appeal of McCall, 33 Ed Dept Rep 148, Decision No. 13,005; Appeal of Williams, 37 Ed Dept Rep 643, Decision No. 13,947).  In this case, petitioner was suspended more than 19 months before respondent preferred charges against her.  During that time she was prohibited from coming on school property and could not consult with her colleagues.  While the board correctly asserts that a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against the employee, on this record, I find that respondent board’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges.  Because respondent board did not act within a reasonable amount of time to prefer charges against petitioner after removing her from teaching duties, such removal must be deemed null and void and expungement is warranted.

To the extent that petitioner seeks an award of costs and fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Moreover, to the extent that petitioner seeks an order directing respondents board and Cornell to issue an apology, the Commissioner lacks authority to order a board of education or school district employee to do so (Application of McDougall, 42 Ed Dept Rep 195, Decision No. 14,819; Appeal of Phillips, 41 id. 10, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).  Finally, there is also no provision in the Education Law authorizing the reprimand of board members by the Commissioner of Education (Appeal of Ewart, 44 Ed Dept Rep 147, Decision No. 15,127).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that any and all references to the January 14, 2014 placement of petitioner on administrative leave and March 2, 2015 suspension be stricken from petitioner’s records and personnel files.  However, nothing herein shall be construed as nullifying respondent board’s September 2, 2015 action to prefer charges pursuant to Education Law §3020-a.

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