Decision No. 14,361

(May 16, 2000)

MILLS, Commissioner.--Petitioner James E. Fix, a resident of the East Syracuse-Minoa Central School District and a member of its board of education, seeks the removal of Rosalie Mastrobattisto from her position as District Clerk. The application must be denied.

Rosalie Mastrobattisto has been associated with the district since 1979. At that time, she was employed by the Eagle Bulletin, a local newspaper which apparently reported district news, among other things. She was contacted by then Superintendent Fritz Hess, who asked her to become a "communications facilitator" for the district. To facilitate this arrangement, the superintendent and Mrs. Mastrobattisto signed a "joint agreement" covering the period November 11, 1979, through February 4, 1980. The agreement provided that Mrs. Mastrobattisto would provide a variety of services to the district, including, but not limited to the following:

The agreement further provided that Mrs. Mastrobattisto would be paid at the rate of $400 per month, beginning November 25, 1979, and ending February 18, 1980.

It appears that Mrs. Mastrobattisto entered into a series of similar contracts over the years, with Dr. Hess and successor superintendents. As the years passed, her duties changed somewhat, and her compensation increased so that in the 1984-1985 school year, for example, she was paid $11,544, and by the 1990-1991 school year she was being paid $18,070.

In July 1991, Mrs. Mastrobattisto’s husband, Anthony, became a member of the board of education. In the 1991-1992 school year, Mrs. Mastrobattisto was paid $19,370. In addition to her duties as communications facilitator, Mrs. Mastrobattisto was appointed district clerk in the 1993-1994 school year, at a salary of $2,000, and has continued in that office to the date of this appeal.

Petitioner was elected to the board in May 1997, taking office in July. A further joint agreement executed by Mrs. Mastrobattisto and the president of the board of education was signed July 21, 1998, whereby Mrs. Mastrobattisto would be paid the sum of $26,668 to serve as communications facilitator for the 1998-1999 school year. During the 1998-1999 school year, Mrs. Mastrobattisto received $5,104 for her services as district clerk, $26,668 for her services as communications facilitator, and $681.72 as compensation for mileage, for a total of $32,453.72. Petitioner claims that none of the contracts prior to 1998 was entered into with his knowledge or approval as a board member, but it is unclear whether or not he is claiming he was unaware of the July 21, 1998, agreement, or whether or not he voted on the same.

On April 23, 1999, petitioner filed an ethics complaint with the district claiming numerous violations of the district’s code of ethics. Petitioner claims that the board, superintendent, and school attorneys have failed to investigate or otherwise act on his ethics complaint. Petitioner asks that I remove Mrs. Mastrobattisto as district clerk "based upon her unethical conduct, as set forth in this Petition . . ." Petitioner’s main claim is that Mrs. Mastrobattisto "has attempted to use her position as District Clerk to obtain additional compensation, payment for expenses, limited job duties and other privileges associated with her independent contractor Communication Facilitator position."

On September 30, 1999, the same day this appeal was commenced, the board of education passed the following resolution by a margin of five in favor, two opposed, with petitioner’s husband abstaining,:

On October 5, 1999, Mrs. Mastrobattisto and the board president executed an agreement whereby the clerk’s duties were expanded to include the functions previously performed by the Communications Facilitator, and the district agreed to pay an "annual salary" of $32,905.80 for such services for the period July 1, 1999, through June 30, 2000. This agreement refers to "annual salary", provides for contributions to the New York State Employees Retirement System, refers to Mrs. Mastrobattisto as "an employee of the District during the term of this Agreement" and provides that "the Clerk shall receive such other fringe benefits as are applicable, upon approval of the Interim Superintendent."

The appeal must be dismissed. Petitioner seeks the removal of Mrs. Mastrobattisto as district clerk, which the Commissioner of Education may do pursuant to Education Law "306. However, the Commissioner’s authority to remove a clerk is limited to situations where the clerk "has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or any other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or the commissioner of education . . ." The record before me does not indicate that Mrs. Mastrobattisto in any way attempted to use her position as district clerk to obtain additional compensation in her capacity as communications facilitator. Nor is there any proof that she had some duty to disclose the details of payments made to her as communications facilitator, or that she breached any such duty. Finally, there is no proof that she tried to "cover up" any aspect of her relationship with the school district, or that she shared any confidential information improperly with others. The burden of proof in an appeal before the Commissioner of Education is squarely upon the petitioner (Application of Leman and Sluys, 39 Ed Dept Rep 330, Decision No. 14,252; Appeal of Robert D. and Barbara D., 38 id. 18, Decision No. 13,975; Appeal of Acme Bus Corporation, 37 id. 219, Decision No. 13,848). In this case, petitioner has simply failed to prove the allegations which are the basis for his claims.

Although I am compelled to dismiss this matter, I am concerned about the manner in which the purported position of communications facilitator has come into existence and evolved. I note for the district’s information, Civil Service Law "22 which provides:

Because this position apparently originated with a former superintendent in the form of a very brief contract, I am forwarding a copy of this decision to the Onondaga County Commissioner of Personnel for her information and review.

THE APPEAL IS DISMISSED.

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