Decision No. 12,958

(July 15, 1993)

Leeds & Morelli, Esqs., attorneys for petitioner, Hillary Palmer, Esq., of counsel

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman and Thomas M. Volz, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals from his dismissal as Assistant Superintendent for Curriculum and Instruction by respondent board of education. The appeal must be dismissed.

Petitioner has been employed by respondent in various capacities since 1971, and received tenure as Director of Language Arts in approximately 1987. In June 1992, petitioner applied for appointment as interim superintendent of respondent district. While that application was pending, petitioner also applied for the position of Assistant Superintendent for Curriculum and Instruction.

On June 23, 1992, respondent board appointed petitioner to the position of Assistant Superintendent for Curriculum and Instruction, effective July 1, 1992, for a three-year probationary period. Although petitioner claims that he was not appointed to this position upon the recommendation of the superintendent, he has placed in the record two documents dated June 23 and June 30, 1992, both bearing the signature of Sterling S. Keyes, who was then superintendent of schools, and a copy of the minutes of the June 23, 1992 board meeting, all of which indicate the superintendent's recommendation and the board's approval. Calvin Wilson assumed the role of interim superintendent on or about July 1, 1992.

By letter dated October 15, 1992, the interim superintendent suspended petitioner with full pay and benefits. He further advised petitioner that at a special board meeting to be held on October 29, 1992, he would recommend petitioner's dismissal effective October 30, 1992. At the special board meeting, the board voted unanimously to terminate petitioner's services effective the next day, and voted to hire in his place Michael A. McCollough for a three-year probationary period beginning November 2, 1992.

Petitioner commenced this appeal and sought a stay which I denied on January 7, 1993. Petitioner asks that I annul the dismissal and reinstate him. He advances a number of legal theories in support of this position. Petitioner claims that the board failed to treat him as a superintendent pursuant to Education Law '1711. He further claims that he should be deemed to have an implied contract with respondent, and that respondent has violated Education Law ''3020 and 3031. He contends that he was fraudulently induced to apply for and accept the position of Assistant Superintendent for Curriculum and Instruction. In the alternative, he claims that if he did hold a probationary appointment, he was entitled to the protections of Education Law ''3019-a and 3031, which the board allegedly violated.

Respondent alleges that it has complied in all respects with applicable law, specifically Education Law '3012. Respondent denies the applicability of Education Law ''1711, 3020, 3019-a, and 3031. Respondent further challenges the existence of any implied contract, and denies that petitioner was fraudulently induced to apply for and accept his position.

I find no support in the record that an implied contract existed, or that petitioner was fraudulently induced to apply for or accept his position. Petitioner's main claims in support of an implied contract are that a former assistant superintendent had such a contract and that interim superintendent Wilson has or had such a contract. Although petitioner may have had an expectation that the district would enter into such a relationship with him, there is no indication that the parties ever actually did so, nor is there any indication of what the terms of such an implied contract might have been. Indeed, the documents presented by petitioner, which are contemporaneous with his appointment, indicate otherwise.

I also find no support for petitioner's claim of fraudulent inducement. Petitioner repeatedly refers to the interim superintendent's alleged remarks that petitioner's position was secure until 1995, at which time it would be eliminated. However, these comments were allegedly made in early October 1992, more than three months after petitioner's appointment, and obviously cannot be the basis for any claim of fraudulent inducement. Although the petition claims that one or more board members may have earlier misled petitioner, petitioner does not clearly state when such remarks were supposedly made or by whom, nor does he provide the substance of such remarks. The record merely indicates that petitioner was granted a probationary appointment as an assistant superintendent and the probationary period was to run from July 1, 1992 to June 30, 1995.

On the record before me, I must conclude that petitioner held a probationary administrative appointment governed by Education Law '3012, and not by either '1711 or '3020. Although a probationary administrative appointment pursuant to Education Law '3012(1)(b) is an appointment at will, it has been held that a school district may enter into a limited contract to provide procedural protections that are not afforded by statute. However, there is no such contract in this particular case.

Petitioner argues that Education Law '3019-a applies to administrators as well as teachers. Prior decisions of the Commissioner have so held, e.g., Matter of Robinson, 2 Ed Dept Rep 448, Matter of Fitzgibbons, 8 id. 205, and Matter of Bourke, 12 id. 261, but petitioner's reliance on that provision is misplaced. Where that section is violated, the appropriate remedy is payment of 30 days' back pay (Matter of Zunic v. Nyquist, et al., 48 AD2d 378, aff'd 40 NY2d 962; Appeal of Longshore, 32 Ed Dept Rep 311; Matter of Gordon, 24 id. 277; Matter of Slater, 12 id. 275). In this case, petitioner has already been paid 30 days' "separation pay" at the time of his termination.

The record contains numerous documents which passed back and forth between the interim superintendent and petitioner during the three and one-half month period prior to petitioner's suspension. It is unnecessary to discuss these at any length, but the documents indicate a series of clashes between the interim superintendent and petitioner with respect to work assignments, administrative philosophies, and alleged failures of petitioner to complete assignments in a timely manner. These documents tend to indicate that petitioner and the interim superintendent were unable to work effectively together, but they provide no basis for a claim of a constitutional violation or a stigmatizing charge against petitioner. Accordingly, I find that the district was entitled to dismiss petitioner as an employee at will during the probationary period.

I have reviewed the other contentions of the parties and find them without merit.

THE APPEAL IS DISMISSED.

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