Appeal of D.J.H. from action of the Board of Education of the City School District of the City of Oswego regarding termination of employment.

Decision No. 15,255

(July 28, 2005)

Stefan D. Berg, Esq., attorney for petitioner

Michael J. Stanley, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Oswego (“respondent”) terminating his employment as the Assistant Superintendent for Business.  The appeal must be dismissed.

In July 2002, petitioner was appointed pursuant to a three-year contract as Assistant Superintendent for Business, a non-tenured position.  In that capacity, petitioner was responsible for all phases of the district’s business activities and also served as the superintendent’s designee at student disciplinary hearings.  Before that appointment, petitioner was employed by respondent for more than 25 years, first as a teacher, and then in a number of administrative positions. 

On September 24, 2003, the Oswego County Sheriff’s Department and its drug task force discovered that petitioner was ordering methamphetamine through the mail.  As a result, petitioner was arrested and charged with, among other things, felony drug possession.  On September 26, 2003, petitioner was suspended from his job.  Shortly thereafter, petitioner entered a drug treatment program. 

On November 17, 2003, petitioner pled guilty in County Court, Oswego County, to a felony count of attempted possession of a controlled substance in the fourth degree with the understanding that upon successful completion of a drug treatment program, he would be permitted to vacate his plea, plead guilty to a misdemeanor and receive a sentence of three years probation. 

In December 2003, respondent notified petitioner that it intended to discharge him for cause on the grounds that, among other things, his possession of drugs constituted “conduct which is seriously prejudicial to the school district.”  The notice further advised petitioner that he could attend an executive session on January 5, 2004 at 6:30 p.m. to discuss the matter.

After the initial date was postponed, petitioner attended an executive session with counsel on January 6, 2004.  Following a presentation by respondent’s counsel, petitioner made a lengthy presentation, taking responsibility for his actions, admitting his addiction, but requesting that respondent permit him to retain his position.  After deliberating in executive session later that evening, respondent voted unanimously to terminate petitioner.  This appeal ensued.

Petitioner contends that he was denied due process because, among other things, respondent did not conduct a hearing on the charges.  Petitioner also alleges that respondent was prejudiced by the improper conduct of a board member, who, among other things, organized and participated in a December 9, 2003, public demonstration advocating for petitioner’s termination. That same board member refused to recuse himself from the January 6, 2004 executive session, during which he stated that petitioner was not entitled to any due process and that he “hate[d]” petitioner and wanted him fired.

Petitioner further alleges that respondent did not sufficiently consider his work performance, and instead, improperly terminated him solely on the grounds that he can no longer serve as a role model.  Petitioner requests that I order his reinstatement as Assistant Superintendent for Business, or alternatively, to his former position as School Business Administrator, or order a new hearing before an “impartial panel” to determine “the appropriate cause of action.”  Petitioner also seeks reimbursement for his legal expenses.

Respondent maintains that it afforded petitioner the due process to which he was entitled under his contract and properly terminated him on the grounds that, among other things, his conduct compromised the district’s credibility on substance abuse matters and precluded petitioner from acting as a role model or serving as a hearing officer in student disciplinary hearings.  Respondent also alleges that the appeal is untimely.

Preliminarily, I must address a number of procedural matters.  By letter dated March 31, 2004, respondent requested permission pursuant to §276.5 of the Commissioner’s regulations to submit an amended answer and affidavits from two board members to correct inaccuracies in its earlier submission.  Petitioner does not object.  Under these circumstances, I will accept respondent’s submission.

By letter dated April 5, 2004, respondent objected to petitioner’s reply.  The purpose of a reply is to respond to affirmative defenses and new material set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Klipper, 43 id. 95, Decision No. 14,932).  Accordingly, while I have examined petitioner’s reply, I have not considered those portions that are not directly responsive to respondent’s answer.

Additionally, by letter dated October 26, 2004, petitioner raised a new legal argument.  Respondent objects to this submission.  The regulations of the Commissioner permit parties to submit additional supporting papers, but only with the prior permission of the Commissioner (8 NYCRR §276.5).  Petitioner’s supplemental papers were not submitted in accordance with §276.5 of the Commissioner’s regulations and, therefore, are not part of the record and will not be considered in this appeal (see Appeal of Bd. of Educ. of the East Moriches Union Free School District, 41 Ed Dept Rep 45, Decision No. 14,610).

With respect to petitioner’s legal costs, the Commissioner of Education lacks authority to award damages, costs or attorney’s fees (see e.g. Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222; Application of Coleman, 37 id. 391, Decision No. 13,887).  Accordingly, the appeal must be dismissed to the extent that petitioner seeks reimbursement for attorney’s fees.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent contends that the appeal is untimely because it was commenced more than 30 days after respondent voted to discharge petitioner.

The record reflects that petitioner was notified of the board’s decision on January 9, 2004 and initially served his petition on respondent on Tuesday, February 10, 2004.  The petition was rejected by my Office of Counsel because, among other things, it did not include an affidavit of service or a proper notice of petition as required by Commissioner’s regulations.  Petitioner served respondent with corrected pleadings on February 25, 2004.  An appeal is timely when commenced within 30 days of receiving a determination (see Appeal of Marbury, 41 Ed Dept Rep 119, Decision No. 14,634; Appeal of Lucente, 39 id. 244, Decision No. 14,227).  Further, an appeal is commenced by service of the petition, not by filing it (see Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103).  Petitioner did not initially serve his petition until February 10, 2004, more than 30 days after receipt of respondent’s determination, and offers no excuse for the delay.  Accordingly, the appeal must be dismissed as untimely (see Appeal of Long, 39 Ed Dept Rep 463, Decision No. 14,284).

The appeal must also be dismissed on the merits.  Preliminarily, I find no merit to petitioner’s contention that he was deprived of due process by respondent’s failure to conduct a full evidentiary hearing.  As the Supreme Court has recognized, “[i]n general, ‘something less’ than a full evidentiary hearing is sufficient prior to adverse administrative action” (Cleveland Bd. of Educ. v. Loudermill, 470 US 532, 545, citing Mathews v. Eldridge, 424 US 319, 343).  “The essential requirements of due process, . . .are notice and an opportunity to respond.  The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement” (Cleveland Bd. of Educ. v. Loudermill, supra, at 546). 

Petitioner’s employment contract meets those fundamental requirements by providing, in pertinent part:

Discharge for cause shall constitute conduct which is seriously prejudicial to [the] District, including, but not limited to, neglect of duty, breach of contract, or insubordinate actions.  Notice of discharge for cause shall be given in writing and Administrator shall be entitled to appear before the Board to discuss such causes, which meeting shall be conducted in Executive Session, unless specifically prohibited by law.  The employee shall be permitted to be accompanied by legal counsel at such a meeting.

Thus, petitioner’s employment contract entitled petitioner to written notice and an opportunity to meet with the board in executive session with counsel before being terminated for cause.  The record reflects that petitioner was provided with a detailed notice of intent to discharge outlining the basis upon which respondent sought his termination.  Additionally, petitioner attended an executive session with counsel, admitted the conduct underlying the notice of discharge, made a presentation lasting almost two hours and introduced numerous letters of support and other documentary evidence.  Under these circumstances, I find petitioner was afforded due process.

Nor do I find that the conduct of board member, Francis Hoefer, (“Hoefer”) deprived petitioner of due process.  The record reflects that during the executive session, Hoefer showed impatience, disrespect and disdain both toward petitioner and the process that respondent sought to provide him.[1]  Although Hoefer’s conduct was indeed regrettable, I do not find that it deprived petitioner of a meaningful opportunity to be heard.  Nor is there any evidence that Hoefer’s conduct influenced the remainder of respondent’s members.  To the contrary, four of respondent’s seven members have submitted affidavits stating, among other things, that they entered the executive session with an open mind and were not improperly influenced by Hoefer.

I agree with petitioner that Hoefer should have recused himself from considering the charges against petitioner because his conduct, which included, among other things, picketing before respondent’s December 9, 2003 executive session with a sign saying “[H.] must go,” demonstrated bias against petitioner (see Komyathy v. Bd. of Educ. of Wappinger C.S.D., 75 Misc. 2d 859).  I nevertheless find no basis to afford petitioner relief because the remaining six board members also voted to discharge petitioner.

Nor do I find that respondent abused its discretion by terminating petitioner.  A board of education has broad powers pursuant to Education Law §1709(13) and (33), and §2503 concerning the superintendence, management, and control of a school district.  In addition, a board of education has the authority to enter into an employment contract with its administrators including provisions regarding termination (Education Law §§2503 and 2509[3]).  I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable law (Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Devany, 41 id. 466, Decision No. 14,747; Appeal of Rider, 39 id. 282, Decision No. 14,238).  Petitioner has failed to meet that burden.

Petitioner’s contract provides that he could be discharged for conduct that was seriously prejudicial to the district.  Respondent discharged petitioner based on its conclusion, among other things, that petitioner had compromised the district’s credibility on substance abuse matters, was not a good role model, and was not competent to serve as a hearing officer in student disciplinary hearings.  Additionally, respondent found that petitioner’s conduct created “intense notoriety and adverse publicity” and as a result, caused “significant disruption to the operation of the school district.”

While I commend petitioner for the positive steps he has taken to overcome his addiction, I find that it was not irrational for respondent to conclude that petitioner’s admitted drug possession and addiction would undermine the district’s credibility with respect to its drug use policy.  Nor was it irrational for respondent to conclude that petitioner could no longer act as the superintendent’s designee at superintendent’s hearings, where he would be required to hear evidence and recommend penalties on student suspensions, including those involving drug use and possession.  The record reflects that petitioner’s arrest and conviction garnered significant media attention and caused considerable adverse reaction in the community.  Under these circumstances, I do not find that respondent acted irrationally by concluding that petitioner’s conduct was seriously prejudicial to the district.  In sum, I find no basis to disturb respondent’s decision, notwithstanding petitioner’s record of service to the district.

I have examined petitioner’s remaining claims and find them without merit.

THE APPEAL IS DISMISSED.

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