Decision No. 13,601

(April 24, 1996)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, L.L.P., Esqs., attorneys for petitioner, Warren H.

Richmond, III, Esq., of counsel

Mastroianni & Mastroianni, Esqs., attorneys for respondent, Anthony

Mastroianni, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the preferral of disciplinary charges against him and his suspension without pay as superintendent of schools pending a determination on the charges. The appeal must be sustained in part.

Respondent employed petitioner as superintendent of schools in June 1993. In July 1994, the parties entered into a two year employment contract for the period July 1, 1994 through June 30, 1996. On October 18, 1996 the parties extended the original contract through June 30, 1997 (collectively referred to herein as the "contract"). Petitioner's contract provides, in part, that petitioner's employment may be terminated for cause. Specifically, paragraph SIXTH of the contract states:

REMOVAL DURING THE TERM OF THE CONTRACT

1. Insubordination

2. Incompetency

3. Misconduct

On January 17, 1996, respondent held a special meeting. At that meeting, respondent went into executive session to discuss pending litigation against the board. Prior to the conclusion of the executive session, board member Outram distributed a proposed resolution preferring disciplinary charges against petitioner that Mr. Outram had prepared with the board attorney's assistance. The proposed resolution also provided for petitioner's suspension without pay pending a hearing and determination on the charges. After discussing the resolution in executive session, respondent reconvened in public session where the resolution was adopted without discussion.

Petitioner challenges the board's actions contending that the disciplinary charges were improperly brought because the board never authorized its attorney to prepare the charges against petitioner; three board members had no knowledge prior to January 17, 1996 that such charges were being prepared or that any resolution preferring charges against petitioner would be presented; and four of the board members engaged in improper private meetings concerning the charges and illegally directed the board attorney to prepare the charges. Petitioner also alleges that, by suspending him without pay pending a hearing, respondent violated both his employment contract and his right to due process under the Fourteenth Amendment to the United States Constitution. Petitioner seeks an order annulling the January 17, 1996 resolution and reinstating him with backpay and benefits, retroactive to January 17, 1996.

Respondent contends that the disciplinary actions taken on January 17, 1996 are in all respects lawful and proper.

I will first address the board's preferral of charges against petitioner. Dr. Pinckney contends that this action must be nullified on several grounds. First, he claims that the board never adopted a resolution authorizing its attorney to prepare the charges against him. However, he offers no authority that such prior authorization is required. The record indicates that board member Outram prepared the charges with assistance from the board attorney. Absent contrary local procedures, there is nothing in law or regulation precluding a member of a board of education access to the board attorney, so long as the board member seeks advice in his or her capacity as a school board member in connection with official school district business.

Petitioner also alleges that four of the members of the board engaged in improper private meetings concerning the charges and illegally directed the board attorney to prepare such charges. In an appeal to the Commissioner of Education, petitioner has the burden of establishing the facts upon which he seeks relief, (8 NYCRR 275.10; Appeal of Haff, 35 Ed Dept Rep 130; Appeal of Silano, 35 id. 190). Petitioner offers no evidence in support of his allegations, instead making conclusory statements in his petition. In contrast, respondent offers affidavits from the four board members in question, in which they specifically deny that such meetings occurred. Absent any proof in the record to substantiate petitioner's claims, I find them to be without merit.

Petitioner also challenges that part of the January 17, 1996 resolution suspending him from his duties without pay pending a hearing and determination on the charges against him. He contends that the suspension without pay violates both his contract and due process rights under the Fourteenth Amendment to the United States Constitution.

The contract between the parties provides that petitioner is subject to discharge for good cause upon notice of written charges and a hearing. The contract is silent with regard to respondent's authority to suspend petitioner pending a determination on the charges. In Matter of Jerry, 35 NY2d 534 [1974], the Court of Appeals recognized that the power of suspension is essential to the sound administration of the public school system and, in appropriate circumstances, may be invoked in connection with disciplinary action. In Application of Myers, 89 Misc 2d 451 [1977], where a superintendent's contract provided that he was subject to discharge for good cause, the court held, citing Jerry, that "implicit in this contractual agreement is the right, under proper circumstances, of the board to suspend petitioner pending a hearing on the charges" (89 Misc 2d 451, 453). Suspension of a school district's chief administrative officer has serious impact on the affairs of a school district and should not be implemented unless the superintendent's continued involvement will adversely affect the operation of the school district or is not in the best educational interests of the district's pupils. In this instance, the record indicates that respondent had lost faith in petitioner's judgment and believed that he was not consistently carrying out board directives and policy. In view of the contractual provisions, the unsatisfactory relationship that currently exists between the parties and its impact on their working relationship, I decline to order petitioner's reinstatement to his position pending a hearing and determination on the charges against him.

However, respondent's withholding of petitioner's salary during the period of suspension presents a separate issue for consideration. There is no question that petitioner possesses a property right in his continued employment by virtue of his employment contract with respondent, of which he may not be deprived without due process (Board of Regents of State Colleges, et al. v. Roth, 408 US 564 [1992]; Stein v. City of New York, 792 F2d 13 [2nd Cir. 1986], certden 479 US 984). One who has a property interest in continued employment also possesses a property interest in his employment benefits, including his salary (McCreery v. Babylon Union Free School District, 827 F. Supp. 136 [1993]; see, Watkins v. McConologue, 820 F. Supp. 70 [1992]). Before a person may be deprived of a protected property interest, the person is entitled to due process protections under the Fourteenth Amendment (Board of Regents v. Roth, supra). In Cleveland Board of Education v. Loudermill, 470 U.S. 532, (1985), the United States Supreme Court held that, to terminate a protected property interest, the government is required to provide notice and a pre-termination opportunity to respond. The Loudermill court went on to state that where the "employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay" until the due process requirement is satisfied. (emphasis supplied). Thus, it follows that, where an employee has a protected property interest in his or her compensation, it may not be discontinued without due process (see, McCreery v. Babylon Union Free School District, supra; Watkins v. McConologue, supra). I note that, prior to the Supreme Court's decision in Loudermill, the Federal District Court for the Southern District of New York held, in a case involving a school superintendent, that due process would be satisfied where the board of education affords a post-termination hearing only if the superintendent was suspended with pay (Fuentes v. Roher, 395 F. Supp. 1225[1975]; see, also, Matter of Gainey, 14 Ed Dept Rep 176).

In addition to the constitutional support for Dr. Pinckney's claim, as chief administrator for education in this State, I must consider the educational policy ramifications of the board's actions (See, Board of Education of Northport - East Northport Union Free School District, et al. v. Ambach, 90 Ad2d 227, aff'd 60 NY2d 758 [1983]; Union Free School District No. 2 of Town of Cheektowaga, et al. v. Nyquist, 41 AD2d 1003, aff'd 38 NY2d 137 [1975]). As noted supra, suspension of a school district's chief administrative officer seriously affects the affairs of a school district and should not occur unless the superintendent's continued presence adversely impacts the district's management and operation. In those cases, however, absent a specific provision in the contract authorizing suspension without pay, a board of education must not be permitted to withhold its superintendent's salary prior to a hearing and determination on the charges, unless an unreasonable delay in such resolution is directly attributable solely to the actions of the superintendent. To hold otherwise would, in effect, create a mechanism by which a chief administrative officer may be forced to resign based solely on his or her financial situation, prior to resolution of the charges. Such a result renders meaningless the due process provisions of the employment contract between a board and its superintendent. In addition, where a professional educator is the subject of disciplinary charges, it is in the best educational interests of the state to have those charges resolved prior to continued employment in the education system. Moreover, given annual changes in board composition, the employment contract between a board and its chief administrative officer provides a basis for administrative stability within the district which should not be circumvented in this fashion.

Based on the foregoing, it is clear that petitioner cannot be suspended without pay, until due process is satisfied. Although petitioner received notice of the charges against him, he has not yet had an opportunity to respond to those charges. I note that a hearing on the charges was scheduled to begin on April 22, 1996. Until petitioner has been fully afforded his due process rights, respondent may not terminate his right to receive his salary. Respondent, therefore, acted improperly in withholding petitioner's salary pending a hearing and determination on the charges brought against him.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent is directed to pay petitioner his salary retroactive to January 17, 1996, the date on which petitioner was suspended without pay, and continue payment of such salary until the completion of a due process hearing and the issuance of a determination rendered pursuant to it.

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