Decision No. 13,284

(November 3, 1994)

SOBOL, Commissioner.--Petitioners challenge the action taken by respondent Board of Education of the Lakeland Central School District to extend its contract with respondent Siebert and to grant him a raise. The appeal must be dismissed.

On May 14, 1993, respondent board (the "board") appointed respondent Siebert ("Siebert") superintendent of the Lakeland Central School District, effective July 1, 1993. The board entered into a three-year employment contract with Siebert, beginning July 1, 1993 and ending June 30, 1996. The contract provided for an annual review of Siebert's salary. On June 9, 1994, the board voted to increase Siebert's annual salary. At the same time, the board also agreed to extend Siebert's employment contract by five years, i.e., until June 30, 1999. This appeal ensued.

Petitioners, taxpayers and residents of the district, argue that the salary increase and the contract extension constitute an illegal gift of public funds. Specifically, petitioners contend that the board was not authorized to extend Siebert's contract or give him a salary increase because Siebert had not indicated any dissatisfaction with or expressed a desire to leave his position.

In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioners offer no legal support for their novel claim that a board of education may only grant its superintendent an annual pay increase or extend his or her employment contract if the superintendent is dissatisfied and contemplating leaving his or her position. In contrast, Education Law '1711(2) and (3) authorize a board of education to appoint and contract with a superintendent of schools. The salary of a superintendent is to be "fixed by the board of education" (Education Law '1711[3]). Moreover, a board of education may agree to extend its superintendent's contract. Such an extension is permissible pursuant to Education Law '1711(3), so long as the duration of the contract either before or after the extension does not exceed five years (Lewiston-Porter CSD v. Sobol, 154 AD2d 777; Matter of Northup, 24 Ed Dept Rep 262; Matter of Venezia, 19 id. 273). Since the extension in this case was for five years, there is no legal basis to annul the board's actions.

Petitioners also contend that the board's decision to extend Siebert's contract and increase his salary is invalid because it was made by a "lame duck" board. Petitioners note that the board acted on this matter approximately three weeks before three newly elected individuals assumed positions on the board. Petitioners seem to argue that the outgoing members of the board may not vote to extend the superintendent's contract.

There is authority for the proposition that municipal and governmental boards should not be able to bind their successors to long term contractual provisions (Abrams v. Horton, 18 AD 208; Connelly v. Commissioner, 32 Misc 489; Vacheron v. City of New York, 34 Misc 420; Mack v. Mayor, 37 Misc 371), and the principle has been applied to school districts (Ferkin v. Board of Education, 253 AD 751, rev'd on other grounds 278 NY 263; Appeal of Nyquist, 83 Misc 2d 1042, aff'd 59 AD2d 434). However, the courts have long recognized an exception where a specific statutory provision authorizes such a long term contractual arrangement (see, e.g., Murphy v. Erie County, 60 Misc 2d 954, 34 AD2d 295, 28 NY2d 80). Education Law '1711(3) is such a provision. Indeed, every time a board enters into a multi-year contract pursuant to that provision, it necessarily binds successor boards.

While I am constrained to recognize the legality of the eleventh hour contract extension voted by the majority of the former board in this matter, I do not endorse the wisdom of its action. It can be argued that the board majority acted in a fundamentally antidemocratic manner in arrogating to itself authority over the superintendency for the maximum period allowed by law, although it knew it had lost its mandate in the election. Such action does not inspire voter confidence in school officials.

I have reviewed petitioners' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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