* Subsequent History: Matter of Board of Educ. of Morristown Cent. School Dist. v Mills; Supreme Court, Albany County (Bradley, J.); Judgment dismissed petition to review. *

Appeal of BRUCE WAKKER from action of the Board of Education of the Morristown Central School District and Beverly Ouderkirk regarding termination of employment.

Decision No. 14,969

(October 9, 2003)

Girvin & Ferlazzo, P.C., attorneys for petitioner, Kristine Amodeo Lanchantin, Kathy Ann Wolverton, and Shauna M. Collins, Esqs., of counsel

Silver and Silver, attorneys for respondent Board of Education, George E. Silver, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Morristown Central School District (“respondent board”) to terminate his employment as superintendent of schools.  The appeal must be sustained.

On May 9, 2000, respondent board and petitioner executed an employment contract providing that “[petitioner’s] term of employment shall be for three (3) years, commencing on July 1, 2000, and terminating on June 30, 2003, unless further extended or sooner terminated as hereinafter provided.”  Under the heading “Agreement Renewals,” the contract states in relevant part:

1. [Respondent board] shall notify [petitioner], on or before June 1, two years before expiration of agreement, whether it intends to extend his employment for an additional year commencing on July 1, 2001, or whether [petitioner’s] term will expire on June 30, 2003.  By June 30 of each school year thereafter [respondent board] shall likewise act to notify [petitioner] whether it intends to extend his employment for an additional year commencing on July 1 of the year set for termination of the then current contract.  At such time, a motion to extend the term of this Agreement and [petitioner’s] employment for an additional one (1) year period will be moved, seconded, and voted upon by [respondent board].  The failure of [respondent board] to act in accordance herewith shall not cause this Agreement or the employment of [petitioner] to be extended beyond the then current expiration date.
2. Should [respondent board] fail to meet or act in regard to the [petitioner’s] employment prior to June 1, as required herein [petitioner] may, at any time subsequent to June 1, request in writing that [respondent board] inform him whether or not it intends to extend his appointment for an additional one (1) year term.  [Respondent board] shall, in writing, respond to this request in either the affirmative or the negative within thirty (30) days of its receipt of the request.
3. Any extension of the term of [petitioner’s] employment shall be evidenced by an amendment to this Agreement; and shall be upon the same terms and conditions as herein set forth unless otherwise agreed in writing by the parties....

Under the heading “Compensation,” the contract states in relevant part:

1. [Petitioner] shall be paid, as salary, for the [y]ear July 1, 2000, through June 30, 2001, the sum of [e]ighty-one thousand dollars ($81,000).
2. For each subsequent twelve-month period of employment, [petitioner’s] salary shall be determined by negotiations between [respondent board] and [petitioner] based upon [respondent board’s] evaluation of [petitioner’s] performance during the prior school year....
3. [Petitioner’s] compensation for each subsequent twelve-month period of employment shall be determined by [respondent board] no later than June 1 in each year....

The contract also provides that petitioner’s employment may be terminated during the term of the agreement only for just cause in accordance with the contract’s due process hearing procedures, or by the parties’ mutual agreement. 

On or about August 22, 2001, after petitioner’s annual performance review, respondent board’s president notified petitioner that respondent board intended to extend his contract an additional year. On August 22, 2001, respondent board voted to “...approve the extension of [petitioner’s] contract for an additional year and that he receive a 2.5 percent salary increase for the 2001-2002 school year.” 

On or about August 21, 2002, after petitioner’s annual performance review, respondent board’s president notified petitioner that respondent board intended to extend his contract an additional year. On August 21, 2002, respondent board voted to “...renew [petitioner’s] contract for one year with a 3 percent increase for the 2002-2003 school year.”

On June 11, 2003, respondent board voted “...not to renew or extend [petitioner’s contract] beyond June 30, 2003.”  Petitioner’s employment terminated effective June 30, 2003. Respondent board subsequently appointed Beverly Ouderkirk as interim superintendent. This appeal ensued.  Petitioner’s requests for interim relief were denied on July 22 and August 6, 2003.

Petitioner asserts that on August 22, 2001, respondent board extended his contract to June 30, 2004, and that on August 21, 2002, respondent board extended his contract to June 30, 2005.  Accordingly, he contends that respondent board could only terminate his employment prior to June 30, 2005 for just cause in accordance with the contract’s due process procedures.  Respondent board asserts that its August 22, 2001 and August 21, 2002 votes were limited to setting petitioner’s compensation for the following year, and did not extend his contract.  Thus, respondent board asserts that the contract expired June 30, 2003 and the just cause termination provisions do not apply.

Petitioner served the petition on Ms. Ouderkirk. However, she has not filed an answer or otherwise appeared.

Initially, I note that respondent board’s answer does not comply with §275.12 of the Commissioner’s regulations in that it does not either admit or deny the specific allegations of the petition.  In spite of this defect, and in the absence of any prejudice, I have considered the arguments made in the answer. Pursuant to §276.4 of the Commissioner’s regulations, I have also accepted and considered respondent board’s memorandum of law, which was submitted belatedly.

Under the heading “Agreement Renewals,” the contract provides that before the end of each year of the contract respondent board will “...notify [petitioner] whether it intends to extend his employment for an additional year commencing on July 1 of the year set for termination of the then current contract...”, and will then vote on “...a motion to extend the term of this Agreement and [petitioner’s] employment for an additional one (1) year period....”  On August 22, 2001, respondent board voted to “...approve the extension of [petitioner’s] contract for an additional year and that he receive a 2.5 percent salary increase for the 2001-2002 school year.”  I find that by this action, respondent board clearly extended petitioner’s contract for an additional year until June 30, 2004.

Thereafter, on August 21, 2002, respondent board voted “that [respondent board] renew [petitioner’s] contract for one year with a 3 percent increase for the 2002-2003 school year.”    I note that although the 2002 vote uses the word “renew” rather than “extend,” the provisions in the contract related to extending the contract are under the heading “Agreement Renewals.”  Thus, I find that the reference to “renew” in the 2002 vote is synonymous with “extend.” Accordingly, I conclude that respondent board’s action of August 21, 2002 further extended petitioner’s contract until June 30, 2005.

Respondent board’s assertion that its August 22, 2001 and August 21, 2002 votes were limited to setting petitioner’s compensation for the following year is inconsistent with the language contained in the board minutes, which, in addition to referring to compensation, expressly referred to extension or renewal of the contract.  Respondent board’s assertion that the August 2001 vote to extend the agreement only extended the agreement to June 30, 2002, and the August 2002 vote only extended the agreement to June 30, 2003 is similarly flawed.  The original contract set forth a term that expired on June 30, 2003.  Thus, subsequent votes to extend the contract to June 30, 2002, and then again until June 30, 2003 would have been superfluous.  Moreover, respondent board’s observation that the contract provides that respondent board’s failure to vote on whether to extend petitioner’s contract “...shall not cause this agreement or the employment of [petitioner] to be extended beyond the then current expiration date” is not relevant to the present case because respondent board clearly did vote to extend petitioner’s contract in 2001 and again in 2002.

Respondent board argues that the contract provision requiring respondent board to notify petitioner two years before the contract’s expiration whether it intends to extend the contract is untenable because it requires respondent board to anticipate the “quality, actions and conduct” of petitioner two years in advance of the expiration of the contract.  I disagree. If respondent board did not want to extend petitioner’s contract at the end of the first year it could have elected not to do so. It could also have voted against an extension in 2002. In that case, at the contract’s expiration, respondent board could have terminated petitioner’s employment, continued his employment without a contract, or negotiated a new contract. However, respondent board instead twice voted to extend the contract. 

Respondent board also refers to the contractual provision stating that “...[a]ny extension of the term of [petitioner’s] employment shall be evidenced by an amendment to this Agreement....”  Respondent board asserts that even if it voted to extend the contract, the contract was not, in fact, amended.  I disagree.  The contract provides that respondent board will “...notify [petitioner] whether it intends to extend his employment for an additional year commencing on July 1 of the year set for termination of the then current contract,” and that “[a]t such time, a motion to extend the term of this Agreement and [petitioner’s] employment for an additional one (1) year period will be moved, seconded, and voted upon by [respondent board].”  Under these provisions, I find that the contract was extended at the time of respondent board’s votes in August of 2001 and 2002 (See, Appeal of Stephens, 28 Ed Dept Rep 269, Decision No. 12,104, judgment granted dismissing petition to review, Lewiston-Porter Central School District v. Sobol, Sup. Ct., Albany Co., Special Term (Kahn, J.), March 9, 1989, n.o.r.; aff’d 154 AD2d 777). 

Furthermore, these extensions were memorialized in respondent board’s minutes.  The contract simply states that any extension “shall be evidenced by an amendment”; it does not require that the amendment be memorialized in any particular format.  Moreover, even if the contract required the amendments to be memorialized in a formal document labeled “amendment,” I would excuse the non-occurrence of that condition. Such a condition would not be a material part of the agreement and failure to excuse noncompliance with the condition would result in a disproportionate forfeiture by petitioner (See, Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 NY2d 685; Restatement [Second] of Contracts §229).

Respondent board also refers to the contractual provision stating that “[s]hould [respondent board] fail to meet or act in regard to [petitioner’s] employment prior to June 1, as required herein [petitioner] may, at any time subsequent to June 1, request in writing that [respondent board] inform him whether or not it intends to extend his appointment for an additional one (1) year term.”  Respondent board observes that it did not vote to extend the contract prior to June 1 of each year of the contract, and that petitioner did not invoke his right to request such a vote.  Respondent board suggests that petitioner’s failure to request such a vote somehow supports respondent board’s position in this case. I disagree. The contract provides that petitioner may request such a vote, but he was not required to do so. Moreover, it was reasonable for petitioner to wait until after his annual performance reviews before determining whether to make such a request.  In the present case, petitioner did not need to request that respondent board vote to extend his contract because it did so shortly after his performance reviews in August of 2001 and 2002.

For the above reasons, I conclude that petitioner’s contract has been extended until June 30, 2005.  Accordingly, respondent board is prohibited from terminating petitioner’s employment prior to that date except for just cause in accordance with the contract’s due process hearing procedures. 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent board’s action of June 11, 2003 terminating petitioner’s contract as of June 30, 2003 is hereby annulled; and

IT IS FURTHER ORDERED that respondent board reinstate petitioner as its superintendent of schools, and pay petitioner back salary and benefits from June 30, 2003; and

IT IS FURTHER ORDERED that the back salary and benefits ordered to be paid to petitioner under the previous paragraph be proportionately reduced by the salary and benefits he may have earned from other employment from the date of the termination of his employment with respondent board.

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