Appeal of DR. SHIMON WARONKER from action of the Board of Education of the Hempstead Union Free School District regarding a board resolution.

Decision No. 17,790

(November 15, 2019)

The Law Offices of Frederick K. Brewington, attorneys for petitioner, Frederick K. Brewington and Julissa M. Proano, Esqs., of counsel

Nixon Peabody, LLP, attorneys for petitioner, Joseph Ortego, Jeannie Sha, and Matthew Forzano, Esqs., of counsel

The Scher Law Firm, LLP, attorneys for respondent, Jonathan L. Scher and Austin R. Graff, Esqs., of counsel

BERLIN., Interim Commissioner.--Petitioner challenges a June 13, 2019 resolution of the Board of Education of the Hempstead Union Free School District (“respondent”).  The appeal must be dismissed.

Respondent hired petitioner under a written employment contract to serve as the district’s superintendent of schools for a four-year term, from July 1, 2017 to June 30, 2021.  By amendment to his contract, petitioner’s start date was changed to June 2, 2017 and he commenced service on that date.

The record indicates that, on January 5, 2018, petitioner published an open letter to the community and posted the same on the district’s website.  The letter included, among other things, the following statements:  “[p]olitics, self interests, patronage, vendettas, threats, and cover-ups cannot rule the day.  Our collective goal must be to elevate the standards for all involved in and attached to the Hempstead School District.”

On January 9, 2018, respondent voted to place petitioner on paid administrative leave.  The record does not specify the basis for respondent’s action, but suggests that respondent alleged that petitioner had materially breached the contract, been negligent, and engaged in gross misconduct.

Petitioner’s contract of employment provided:

The Superintendent shall not be suspended, disciplined, or terminated, without just cause and only for alleged acts of material breach of this Agreement, neglect of duty, gross misconduct, or disability from performance of his duties ... and only following a fair hearing before an impartial hearing officer.  In the event ... the Board seek[s] to terminate this Agreement they shall be required to prepare ... a detailed statement of each charge....

On or about August 9, 2018, respondent served petitioner with 41 charges and specifications, and on or about October 15, 2018, respondent served petitioner with 45 amended charges and specifications.  The record does not include a copy of the charges and specifications nor the amended charges and specifications.

In January 2019, the parties stipulated to an impartial hearing officer to oversee the termination proceedings (“arbitration proceedings”).  According to the hearing officer, the arbitration proceedings were intended “to determine whether [the district] sustained its burden of proving that [petitioner] materially breached [his employment contract], acted negligently or engaged in gross misconduct” while serving as superintendent, thereby “entitling the district to remove him pursuant to ... his employment contract.”

The record indicates that the parties proceeded to engage in document discovery in early February 2019, prior to taking depositions.  In an affidavit submitted with respondent’s memorandum of law, respondent’s general counsel avers that, while preparing for his deposition in the arbitration proceedings, he “reviewed minutes of Board meetings from May 2017, June 2017 and July 2017, and noted there was no indication that [petitioner] took and filed an oath of office with the District Clerk.”  The general counsel further avers that “[b]ased upon [his] review of Board minutes, the oath book and [his] conversation with [the district clerk], [he] find[s] no evidence [petitioner] had taken and filed an oath of office before or after he took office as Superintendent of Schools.”

On June 13, 2019, respondent adopted a resolution declaring petitioner’s office vacant.  Specifically, the resolution provided in part as follows:

Resolve[d], that the office of the District’s Superintendent of Schools is deemed vacant pursuant to N.Y. Public Officers Law §30.1.h and pursuant to [the Commissioner’s decision in Application of Karpen (citation omitted)] ...; and further

Resolve[d], that the office of the District’s Superintendent of Schools, held by [petitioner], is declared vacant ...; and further

Resolve[d], that the contract between the District and [petitioner] is hereby determined to be void, nullified, and of no force and effect ...

By letter dated June 17, 2019, respondent requested that, in light of its resolution declaring petitioner’s position vacant and his contract null and void, the hearing officer terminate the arbitration proceedings.  By order dated August 19, 2019, the hearing officer suspended the arbitration proceedings during the pendency of this appeal.

On June 26, 2019, petitioner emailed respondent’s district clerk a notarized document titled, “OATH OF OFFICE NUNC PRO TUNC.”  The document, signed by petitioner, states:

I Shimon Waronker, do solemnly affirm that I have and I will support the constitution of the United States and the constitution of the State of New York, and that I have and I will faithfully discharge the duties of the office of Superintendent of schools for the Hempstead Union Free School District to the best of my ability.

Petitioner argues that “the June 13, 2019 resolution is pretextual and a mere attempt to terminate a qualified Superintendent....”; that he took and filed an oath of office nunc pro tunc after learning of the requirement; and that “custom and past practices prove that [respondent’s] district clerk has historically administered and filed the oaths of office in a bound oath book for all appointed or elected superintendents, board trustees and officers” – but did not do so for petitioner.  Petitioner seeks to be “fully reinstated” with back pay; a ruling that his contract is not null and void; and a ruling “accepting” the oath of office nunc pro tunc that he had emailed to the district clerk.[1]

Respondent asserts, among other defenses, that petitioner’s appeal is untimely.  Additionally, respondent contends that its resolution was proper because petitioner’s office was vacated by operation of law when he failed to take and file his oath of office within the statutorily required time period.  Respondent requests that I dismiss the appeal and award the district attorneys’ fees and costs associated with defending this appeal.

First, respondent asserts that the appeal is untimely.  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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  On June 13, 2019, respondent adopted a resolution declaring petitioner’s office vacant.  Thus, petitioner was required to commence his appeal on or before July 15, 2019.  Respondent asserts that, while petitioner served the petition upon board member Carmen Ayala on July 12, 2019,[2] petitioner “did not file the Notice of Petition and Petition on July 12, 2019, to ensure its delivery and filing on Monday, July 15, 2017.”[3]  On July 17, 2019, my Office of Counsel received petitioner’s notice of petition, petition, and affidavits of verification and service.  Accordingly, respondent asserts the petition was filed more than 30 days after the act complained of, without excuse, and thus must be dismissed as untimely.  However, this argument erroneously conflates service with filing, the former of which must be effectuated within 30 days, the latter of which must be accomplished within five days after the service of any pleading (8 NYCRR §275.9).  As noted above, my Office of Counsel received the petition and associated verifications and affidavits on July 17, 2019, within the required timeframe.  Accordingly, the appeal was timely commenced and filed.

The petition must, however, be dismissed for lack of proper verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Pierre, 57 id., Dec No. 17,270; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Section 275.5 of the Commissioner’s regulations requires that “the petition shall be verified by the oath of at least one of the petitioners ....”  Here, petitioner did not verify the petition.  Rather, the verification is signed by petitioner’s counsel.  Petitioner’s counsel is not a petitioner in this appeal; therefore, his verification is improper, and the appeal must be dismissed (see Appeal of Valdez, 54 Ed Dept Rep, Decision No. 16,651; Appeal of D.P., 46 id. 516, Decision No. 15,580).

While the appeal must be dismissed on procedural grounds, I remind the field that in September 1999, the Department’s then-Counsel and Deputy Commissioner for Legal Affairs, Kathy A. Ahearn (“NYSED counsel”), issued a memorandum to district superintendents, superintendents of schools, and school district attorneys regarding the Commissioner’s determination in Application of Karpen (39 Ed Dept Rep 98, Decision No. 14,185).  In the memorandum, NYSED counsel notified the field that, with regard to the taking and filing of oaths of office, “beginning with new initial appointments and reappointments as of the date of this memorandum, superintendents are advised to comply with the Public Officers Law.”

Finally, respondent’s request for costs and attorneys’ fees must be denied.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

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

THE APPEAL IS DISMISSED.

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