Appeal of HELEN JEAN GREENE from action of the Board of Education of the City School District of the City of Middletown regarding dismissal as a school nurse.

Decision No. 15,401

(April 27, 2006)

Lamb & Barnosky, LLP, attorneys for respondent, Sharon N. Berlin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Middletown ("respondent") to terminate her employment as a school nurse. The appeal must be dismissed.

On September 10, 2004, petitioner was employed by respondent as a full-time nurse and assigned to work at the district's Truman Moon School. At approximately 9:30 a.m. on that day, a five-year old kindergarten student, B.F., came to the nurse's office because she had been vomiting. Petitioner alleges that she made calls to the telephone numbers listed on the district's Health Services Emergency Information sheet, leaving voice mail messages because she was unable to contact anyone directly. Approximately 45 minutes later, the health clerk informed petitioner that B.F.'s mother had been reached and was coming to pick up the child. At approximately 10:30 a.m., a woman came to the nurse's office and petitioner released B.F. to that woman, who then left with the child. Petitioner alleges that when the woman entered, B.F. said "mommy". It was subsequently discovered, when B.F.'s actual mother arrived to pick up the child, that the woman to whom B.F. was released was not B.F.'s parent, did not know B.F. or her parent, and had come to the school to pick up another child as a favor for the other child's babysitter. School district staff eventually were able to identify and contact the woman, and B.F. was reunited with her parents at the woman's residence with the assistance of the police.

The district conducted an investigation of the incident and district staff met with petitioner several times in October through December 2004. On November 30, 2004, the district's director of personnel met with petitioner and delivered a letter confirming that the superintendent of schools would be recommending termination of petitioner's services at respondent's December 2, 2004 meeting. However, at that meeting, respondent delayed action on the superintendent's recommendation because of a possibility that petitioner would offer her resignation in lieu of termination. After petitioner subsequently refused to resign, respondent voted at its December 16, 2004 meeting to terminate her employment, effective December 17, 2004.

Petitioner contends that her termination by respondent is without foundation. Petitioner alleges that there was no rule in existence on September 10, 2004 that prohibited the release of a student to an adult who was not listed on the student's health services emergency information sheet, and that students were released to whomever was sent to pick them up, regardless of whether their name was listed. Petitioner contends that the district created this rule after the fact and then discharged her for violating it. Petitioner alleges that she and other school nurses were not notified of the district's policy regarding use of the emergency information sheet to release students until they received a November 29, 2004 email. She requests that the termination of her employment be annulled, that she be reinstated to her position as school nurse with back pay, and that all derogatory material regarding this incident be removed from her personal history folder.

Respondent contends that its actions were neither arbitrary nor capricious and that petitioner's dismissal was justified because her actions in releasing the child to a complete stranger were egregious and violated district policy 5162, which first became effective September 14, 1995.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Petitioner has failed to rebut respondent's contention that district policy 5162 was in effect on September 10, 2004. That policy provides that no student may be released from school to anyone other than the parent, guardian, or child protective services personnel and law enforcement officers pursuant to law, unless the individual's name seeking release of the student appears on a list provided by the parent or guardian. Petitioner's action in releasing B.F. on that date was in violation of this policy.

In any event, this appeal does not concern a mere technical violation of a policy, but instead involves serious issues of health and safety. The record establishes that petitioner released B.F. to a woman without making any attempt whatsoever to verify the woman's identity and reason for coming to the nurse's office, or even to ascertain her name. Upon the record before me, I do not find respondent's determination to terminate petitioner's employment to be unreasonable, arbitrary or capricious.

I have considered petitioner's other contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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