Appeal of BRUCE COHEN from action of the Board of Education of the Hadley-Luzerne Central School District and Superintendent Irwin Sussman regarding termination of employment.

Decision No. 15,728

(February 29, 2008)

DeBonis & Santiago, LLP, attorneys for petitioner, Victor M. DeBonis, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondents, Kristen Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hadley-Luzerne Central School District (“board”) and Superintendent Irwin Sussman (”superintendent”) to terminate his employment.  The appeal must be dismissed.

Petitioner is certified as a School District Administrator, School Administrator, and Secondary Teacher of Social Studies.  On October 6, 2003, the board approved petitioner’s three-year probationary appointment in the tenure area of Administration as a K-2 Administrator/K-12 Curriculum Coordinator, effective October 7, 2003.  On September 28, 2006, petitioner and the superintendent executed an agreement extending his probation until June 30, 2007.

On April 23, 2007, the superintendent provided petitioner with a written performance review.  By letter dated May 5, 2007, petitioner responded with documentation refuting the superintendent’s negative evaluation.  By letter dated May 21, 2007, the superintendent informed petitioner of his intent to recommend to the board at its June 21, 2007 meeting that petitioner be denied tenure.  Petitioner’s attorney requested the superintendent’s reasons for his negative recommendation.  By letter dated May 31, 2007, the superintendent outlined four areas of continuing deficiencies in petitioner’s job performance: ineffective leadership by, among other things, failing to increase his classroom visibility and be accountable for curriculum mapping; failure to secure adequate competitive grants; ineffective dealings with parents; and inattention while on duty and in interviews.  Petitioner’s attorney responded to this letter.  Thereafter, the board’s meeting was rescheduled to June 25, 2007, at which time it accepted the superintendent’s recommendation and resolved to deny tenure to petitioner.  This appeal ensued.

Petitioner contends that his termination lacked a rational basis and was arbitrary and capricious.  He also contends that the decision was in retaliation for an incident in March 2007 involving the foster child of a board member.  He asserts that the board failed to consider all his accomplishments as detailed in the response to his performance evaluation and the response to the superintendent’s recommendation.  Specifically, petitioner claims that at the time he was hired, the State Education Department (“SED”) identified the middle school as a “School in Need of Improvement,” and, largely as a result of his efforts, SED removed the district and the middle school from that status and recognized them as a “Rapidly Improving/Gap Closing School/District.”  He also asserts that the superintendent’s allegations are unsubstantiated and that he based his evaluation on a nonexistent “survey” of teachers.

Petitioner seeks a determination expunging the superintendent’s negative April 27, 2007 performance evaluation from his personnel records and annulling the superintendent’s recommendation.  He also seeks an order vacating the board’s determination and granting him tenure retroactive to July 1, 2007 with immediate reinstatement to his prior position with back pay.

The board and superintendent maintain that petitioner has failed to meet his burden of establishing a clear legal right to the relief requested.  They assert that they acted lawfully and complied with Education Law §3031, and that their decision was rational and made in good faith.  The board affirmatively asserts that it reviewed petitioner’s response to his performance evaluation and the response to the superintendent’s recommendation before making its determination.  In addition, the board denies that its determination to deny tenure was retaliatory and asserts that it followed the same procedures and process for evaluating whether to grant tenure to petitioner as it did for any other candidate.

Generally, a board of education has the unfettered right to terminate a probationary employee’s employment for any reason unless the employee establishes that he was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (James v. Bd. of Educ. of Central School Dist. No. 1 of the Towns of Orangetown and Clarkstown, et. al., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of Scott, 44 id. 339, Decision No. 15,192, petition to review decision dismissed January 20, 2006 [Sup. Ct., Albany Co., Special Term; Stein, J., n.o.r.]).  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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Petitioner concedes that the board has discretion in determining whether to grant tenure, but contends that the decision lacks a rational basis.  He argues that the only rational basis on which to evaluate his performance is the objective measure of student performance, which he states showed improvement during his employment.

The record indicates that petitioner’s job encompassed substantially more than one pedagogical dimension of student achievement, and that the superintendent found petitioner’s performance lacking in several key areas.  As the superintendent described in his May 31, 2007 letter, petitioner failed to meet several expectations that had been consistently outlined in his performance evaluations.  For example, petitioner failed to increase his leadership and visibility as curriculum coordinator by failing to develop a weekly rotation schedule for classroom visitations that would not only increase his classroom visibility but also help monitor and hold teachers accountable for curriculum mapping.  In addition, he failed to follow through with staff and received negative evaluations from staff.  Although petitioner disagrees with the basis for the decision to terminate his services, he has failed to establish or even allege that the board violated a statute or regulation, or terminated him for a constitutionally impermissible purpose.  As indicated in Matter of Sachs, (71 AD2d 898, affd 50 NY2d 830), the burden is on petitioner to make an "evidentiary showing" of a statutory violation or a constitutionally impermissible purpose, not mere accusations or speculation.  Based on the record before me, I find that petitioner has failed to make any showing of such proof.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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