Appeal of MAXINE DAVIS from actions of the Board of Education of the Westport Central School District and Application for the removal of Alan Hipps, Alice LaRock, George Maffey, Judy Moore and Sam Sherman as members of the Board.

 

Decision No. 15,007

 

(December 24, 2003)

 

James R. Sandner, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

 

The Law Firm of Frank W. Miller, attorneys for respondents, Frank W. Miller, Esq., of counsel

 

MILLS, Commissioner.--Petitioner seeks reinstatement to her former position as a school psychologist, and back pay and compensation for the alleged improper assignment of her duties to others by the Board of Education of the Westport Central School District ("respondent board" or "board").  She also seeks the removal of Alan Hipps, Alice LaRock, George Maffey, Judy Moore and Sam Sherman ("individual respondents" or "board members") from respondent board.  The appeal must be sustained in part.  The application for removal is denied.

     This is the sixth in a series of appeals brought by petitioner following the abolition of her part-time school psychologist position on March 6, 1997, effective at the end of the 1996-1997 school year.  The facts of those appeals are set forth in the prior decisions and will not be repeated here in detail.

In the most recent decision (Appeal of Davis, 41 Ed Dept Rep 154, Decision No. 14,645, dated September 25, 2001, hereinafter "Davis #5"), petitioner sought to enforce two prior decisions dated October 25, 1999 (Appeal of Davis, 39 Ed Dept Rep 270, Decision No. 14,234, hereinafter "Burnell"; and Appeal of Davis, 39 id. 273, Decision No. 14,235, hereinafter "Ferris").  In those appeals, petitioner had challenged the board"s failure in the fall of 1997 to appoint her to new "positions" occupied by Burnell and Ferris.  In sustaining those appeals in part, I ordered that respondent board reinstate petitioner as of October 9, 1997 to the part-time position of school psychologist with back pay and benefits in accordance with its then current collective bargaining agreement, less any income she had received from other employment during that time.

Following the Burnell and Ferris decisions, the board reemployed petitioner as a school psychologist, albeit in a .1 part-time position, commencing March 14, 2000.  However, the parties were unable to reach an agreement on the amount of back pay and benefits due petitioner under those decisions.  Hence, in Davis #5, I calculated the full-time equivalent ("FTE") percentages of petitioner"s salary to which she was entitled for the time, beginning in the fall of 1997, when the duties of "her" position were performed by Ferris and Burnell, and ordered the board to pay petitioner accordingly.  I also rejected petitioner"s claim that the amount of work required of her could not reasonably be performed as a .1 FTE employee, stating that "[a]bsent any evidence of bad faith, I decline to substitute my judgment for that of respondent with respect to petitioner"s employment since March 14, 2000."

Petitioner seeks to remove the individual respondents from the board pursuant to Education Law "306 for failure to comply with my orders in Burnell, Ferris and Davis #5.  Petitioner alleges that they refused to remit her back pay and properly reinstate her.  Petitioner also contends that the board owes her back pay for the period January 1 though March 14, 2000, that it miscalculated the amount of salary owed her subsequent to her reinstatement on March 14, 2000 through June 30, 2000, and that it improperly continues to subcontract with private psychologists for psychological testing that should be performed by petitioner.  Petitioner seeks an order directing respondent board to reinstate her to her former position as a school psychologist, reimburse her in full for all back pay owed, including an additional back pay award for psychological testing improperly subcontracted to others, and cease hiring anyone other than petitioner to perform psychological testing.

Respondents assert that the petition must be dismissed for failure to state a claim upon which relief may be granted.  The board members deny that they have acted in bad faith and maintain that, with the exception of payment for back wages, they have fully implemented Davis #5.  Respondents state that they are ready and willing to pay petitioner, but the parties have not agreed on the amount owed, in large part because petitioner failed to respond to respondents" last proposal.  Respondents also contend that petitioner"s claims are untimely and barred by the doctrine of waiver, and the subcontracting issue is barred by the doctrines of resjudicata and collateralestoppel. Respondents contend that petitioner has failed to meet her burden of proving that respondents acted in bad faith or that she is entitled to be paid for the subcontracted services.  They further maintain that petitioner"s claims should have been addressed through the grievance-arbitration process and that petitioner failed to mitigate her damages.

I must first address a procedural issue.  The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Avnet, 41 Ed Dept Rep 223, Decision No. 14,669; Appeal of Diane M., 39 id. 709, Decision No. 14,356; Appeal of Carney, 39 id. 255, Decision No. 14,229).  Respondent Hipps did not seek reelection at the end of his term and, as of the date of this decision, is no longer a member of the board.  Thus, petitioner"s application to remove respondent Hipps from the board is moot.

A member of a board of education may be removed from office pursuant to Education Law "306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Kavitsky, 41 Ed Dept Rep 231, Decision No. 14,672; Application of Lilker, 40 id. 704, Decision No. 14,588).  To be considered willful, respondents" actions must have been intentional and with a wrongful purpose (Application of Kozak and Hetey, 40 id. 195, Decision No. 14,459).  In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which she seeks relief (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep 329, Decision No. 14,702; Appeal of L.S., 41 id. 270, Decision No. 14,683; Application of Lilker, supra).  Petitioner has failed to establish facts sufficient to warrant the removal of the individual respondents pursuant to Education Law "306.

Following the issuance of Davis #5 on September 25, 2001, the board"s attorney, on October 17, 2001, proposed to pay petitioner the sum of $27,978.76 in satisfaction of the board"s back pay obligation.  By letter dated November 9, 2001, petitioner"s attorney articulated three areas of disagreement with the board"s figures and requested back pay in the amount of $35,131.13 (a difference of $7,152.37).  By response dated January 18, 2002, the board"s attorney continued to dispute two aspects of petitioner"s back pay proposal.  Although petitioner"s attorney apparently contacted the board"s attorney by telephone in late June 2002, no counterproposal or written response to the board"s January 18, 2002 letter was forthcoming until this petition was served on July 31, 2002.

Subsequent to the service of petitioner"s reply in this appeal, the board issued petitioner a check for $27,978.76, the amount proposed in its letter of October 17, 2001.  I find that, in addition to the good faith demonstrated by this remittance, respondents cannot be said to have acted in bad faith for failure to pay petitioner when she herself failed to respond to respondents" last proffered proposal for six months.  Petitioner never responded to the January 18, 2002 letter, or submitted a written "global" proposal to resolve all issues, as petitioner"s attorney apparently suggested by telephone in June 2002.

Petitioner also argues that respondents" bad faith is further demonstrated by the fact that they continued to use subcontractors rather than petitioner to perform psychological testing between January 1998 and August 29, 2001.  In her November 9, 2001 letter, petitioner stated that she suspected that the district was continuing to subcontract out for psychological testing services, in which case she might be entitled to further back pay amounts.  According to information provided by the district with its January 18, 2002 letter, 63 psychological evaluations were conducted between January 1998 and August 29, 2001, 21 of which were performed after the October 25, 1999 orders in Ferris and Burnell.  Of those 21, the district paid for 14.  Petitioner estimates that it takes 1" days to complete a psychological evaluation.  She claims, therefore, that she is entitled to 1" days of back pay at the appropriate per diem rate for 13 of those 14 evaluations for which the district contracted with other psychologists (she does not contest one neuro-psychological exam).  She also seeks 1" days pay for every evaluation conducted by psychologists under contract from August 29, 2001 through the date of this decision.

My decision in Davis #5 provided a formula for respondent board to pay petitioner for psychological services that should have been performed by petitioner but were performed by Ferris or a BOCES psychologist during the 1997-98 school year (.19 FTE), the 1998-99 school year (.23 FTE), and the first four months (September"December) of the 1999-2000 school year (.20 FTE; respondent"s data indicated no evaluations after December 1999).  Accordingly, it is redundant for me to consider 5 of the 13 contested evaluations that occurred through December 1999, since any evaluations conducted through December 1999 were already included in the formula for petitioner"s back pay.

Of the remaining 8 contested evaluations paid for by the district, three occurred between January 1, 2000 and petitioner"s reinstatement on March 14, 2000 (January 4, January 18 and February 1).  The record indicates a disagreement between the parties as to when petitioner was available to begin work.  Petitioner bears the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Goldin, 43 Ed Dept Rep ___, Decision No. 14,904).  She has presented no evidence or authority to demonstrate that she is entitled to back pay for those evaluations or that the district was prohibited from contracting for required psychological services until her return.  In addition, to the extent that petitioner challenges the services performed on these dates in 2000, her claim is untimely since it was not brought within 30 days of the allegedly improper contracting and petitioner offers no good cause for her delay (8 NYCRR "275.16).

The remaining 5 contested evaluations occurred over 17"-months between March 14, 2000 and August 2001.  The decisions in Burnell and Ferris entitled petitioner to back pay pursuant to Education Law ""2510 and 3013 because the district had created new positions to replace, rather than supplement, services previously provided by petitioner.   Petitioner has presented no authority prohibiting the district from contracting for supplemental psychological services in addition to employing petitioner on a part-time basis.  I find, therefore, that respondents have not acted in bad faith by occasionally contracting for psychological testing while employing petitioner at .1 FTE.  As I stated in Davis #5:

Pursuant to Education Law "1709 (subdivisions 13, 16, and 33) local school boards are authorized to determine the type and level of services they choose to provide, and to determine the staffing levels necessary to provide those services.  Respondent has determined that it requires a psychologist to perform psychological services at the rate of .1 FTE.  While petitioner suggests that respondent "has not acted honorably in this situation" and "has not complied with the Commissioner"s orders," it is noteworthy that respondent apparently determined to substantially reduce psychological services as a logical consequence of its actions of March 6, 1997, and that this reduction in services was unrelated to my orders of October 25, 1999.  Absent any evidence of bad faith, I decline

to substitute my judgment for that of respondent with respect to petitioner"s employment since March 14, 2000.

Furthermore, to the extent petitioner attempts to reopen the issue of the subcontracting of psychological services, she is untimely.  That issue was decided in Davis #5 on September 25, 2001. An application to reopen is addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made (8 NYCRR "276.8).  Such application must be made within 30 days of the date of the underlying decision (8 NYCRR "276.8; Appeal of Coleman, 37 Ed Dept Rep 391, Decision No. 13,887.  Petitioner never sought to reopen Davis #5 and I need not reconsider the issue of subcontracting.

     Petitioner also disputes the calculation of her salary for seven days of work following her reinstatement on March 14, 2000 through the end of the 1999-2000 school year.  An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action or decision complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16).  I find that petitioner"s contentions about her salary from March 14 " June 30, 2000 are untimely.  Moreover, payment for work following petitioner"s reinstatement is not covered within the scope of Davis #5, which concerned the salary to which petitioner was entitled for the work performed by Ferris and Burnell.  Accordingly, I will not address it.

Finally, as to the computation of back pay, although respondents have now paid petitioner $27,978.76, she asserts that additional amounts are owed her pursuant to Davis #5.  I agree with petitioner to the extent described below.

The parties agree that for drug counseling services performed by Burnell during the 1997-98 school year, petitioner is owed .175 of her salary for 65% of the school year, because Burnell served for only 65% of the year ($6,303).  For psychological services performed by Ferris, the parties agree that petitioner is owed .23 of her salary for the whole 1998-99 school year based on a 185-day school year ($13,208.21), and .20 for 40% (September"December) of the 1999-2000 school year ($4,782.72).

The parties disagree, however, on the amount owed petitioner for psychological services for the 1997-98 school year.  They agree that .19 FTE is the correct FTE percentage of petitioner"s salary under Ferris and Davis #5.  However, in calculating the amount due petitioner, the board then multiplied .19 of petitioner"s salary by 35%, based on its assumption that Ferris worked for only the portion of the year after Burrell was terminated.  That calculation is erroneous.  Although Burnell worked 65% of the year pursuant to a contract that terminated March 17, 1998, there is nothing in the record indicating that Ms. Ferris worked less than a full year.  To the contrary, in Davis #5, I determined that "Ferris worked 34 of the 185 school days, or approximately .19 FTE."  Accordingly, petitioner is entitled to the full .19 of her salary with no further reduction.

Additionally, the board agrees with petitioner that she is entitled to an additional $100 in her base salary for the applicable years because she completed a specific course.  Thus, applying the agreed-upon percentages to the higher salary levels results in additional increases ($11.38 for drug counseling for 1997-98; $31 for psychological services for 1998-99 and 1999-2000; and a total increase of $6,862.26 for the full .19 of the 1997-98 salary).  The board of education is directed to pay a total of $6,904.64 in full satisfaction of the back pay owed petitioner.

     In light of the above disposition, I need not address the parties" remaining arguments.  I expect this sixth decision to be the last decision on the issues addressed herein.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.  THE APPLICATION FOR REMOVAL IS DENIED.

 

     IT IS ORDERED that respondents pay petitioner $6,904.64 in full satisfaction of the back pay owed her.

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