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Decision No. 13,143

Appeal of ROBERT R. DILLON from action of the Board of Education of the Eastport Union Free School District regarding an employment contract.

Decision No. 13,143

(April 5, 1994)

O'Hara & O'Connell, P.C., attorneys for petitioner, Joseph G. Shields, Esq., of counsel

Dranitzke, Lechtrecker & Trabold, Esqs., attorneys for respondent, Harold G. Trabold, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the action of respondent Board of Education of the Eastport Union Free School District ("respondent") purporting to nullify an earlier board action which extended petitioner's employment contract. The appeal must be sustained.

Petitioner has been superintendent of respondent district since February 1991. In December 1991, petitioner and respondent entered into a contract whereby petitioner agreed to serve as superintendent from February 1, 1992 to January 31, 1995. In May 1993, petitioner and respondent entered into another agreement extending the term of employment through January 31, 1996.

On June 25, 1993, respondent conducted a special meeting. Among other actions, the board adopted these resolutions:

Resolved that the officers of the Eastport Board of Education/District are authorized and directed to execute the contractual agreement dated June 25, 1993 between the District and the Superintendent of Schools pertaining to the terms and conditions of employment under which the Superintendent is to serve for the period through January 31, 1998.

* * *

NOW, THEREFORE, BE IT RESOLVED, upon the recommendation of the superintendent that Deborah Mazura be appointed elementary teacher N-6 for a two-year probationary period, effective September 1, 1993 through June 30, 1995.

Both resolutions were approved by board members Vogel, Kelley, Schaefer and Vaughn, while board members Michne, Ceruti and Charvat challenged the legitimacy of the vote.

On July 1, 1993, as a result of elections conducted earlier, board members Michne and Kelley left the board, and board members Strazzere and Bagnoli joined. The new board conducted a special meeting on July 6 at which it adopted a resolution declaring that the special meeting of June 25 was "null and void and illegally convened;" that "[a]ny and all business conducted at said special meeting is declared null and void and of no further effect;" that "[a]ny and all resolutions made by the Board of Education at its special meeting of June 25th, 1993 is [sic] hereby rescinded;" and that "Robert Dillon . . . Deborah Mazura . . . be served with a copy of this resolution as soon as may be practical by the President of the Board of Education."

At another special meeting of the new board conducted on July 12, the board adopted this resolution:

WHEREAS, the Board resolutions of June 26 [sic] have been rescinded,

WHEREAS, Robert Dillon . . . Deborah Mazura . . . are not entitled to any of the salary and benefits contained in those resolutions

It is therefore appropriate that those persons be returned to the positions they enjoyed prior to June 26, 1993 [sic]

NOW, THEREFORE, BE IT RESOLVED that the Superintendent and the District Treasurer are hereby directed to pay to those persons only such salary and benefits as they enjoyed prior to June 26th [sic].

Petitioner commenced this appeal by serving a notice of petition and petition on respondent on August 6, 1993. He asks that I rescind the July 6 resolution, reinstate the June 25 resolution, reinstate his employment contract and order that the term of his employment contract be effective from June 25, 1993 to January 31, 1998.

Petitioner contends that the June 25 meeting was noticed and conducted in accordance with law, board policy and prior practice. He further claims that this appeal is timely since it was commenced within thirty days after the board meeting of July 12 and also within thirty days after July 14, when he was finally served with a copy of the July 6 resolution, as required by the July 6 resolution itself. He further claims that his petition was properly verified and served and that there are no other parties who should be joined as respondents.

Respondent contends that the appeal is untimely because it was not commenced within thirty days of the July 6 meeting. Respondent further contends that the June 25 board meeting was illegally noticed and conducted in violation of statute and board policy. Respondent claims that the petition was notarized and served by district employees and is, therefore, invalid. Respondent further claims that the other employees who were affected by the actions taken on July 6 and July 12 are necessary parties to this appeal.

Before considering the merits, I will address the procedural arguments raised by the parties. The appeal is timely, since respondent did not provide a copy of the July 6 resolution to petitioner until July 14. In the alternative, the appeal was also brought within thirty days after the July 12 meeting, which specifically restricted salary and benefits to those enjoyed by petitioner prior to June 26. In any event, even if the time to commence an appeal began on July 6, I would, under the circumstances of this case, excuse a one day delay in making service.

With respect to respondent's numerous objections to the calling and conduct of the June 25 meeting, I will not consider them. The parties have focused a great deal of attention on the procedural aspects of the June 25 meeting, but have lost sight of the fact that no petitioner has commenced a timely appeal to me to overturn the actions taken at that meeting. I, therefore, presume that all actions taken at the June 25 meeting were procedurally correct.

Moreover, I reject respondent's arguments that the petition is void because it was notarized and served by school employees. While the employees' cooperation with petitioner in bringing an appeal against their employer may have been questionable, their actions do not result in a void proceeding. In the same vein, the argument that several other affected employees must be joined as parties to this appeal is without merit. The four other personnel actions taken by the board on June 25 were separate and distinct from petitioner's contract modification and from each other. Those transactions would not be adversely affected if petitioner prevails in this appeal. Those four persons, therefore, are not necessary parties to this appeal.

Respondent has cited no persuasive reason why the extension of petitioner's contract was invalid. Indeed, as cited by petitioner, it appears that Appeal of Stephens (28 Ed Dept Rep 269; aff'd sub nom Matter of Lewiston-Porter CSD v. Sobol, 154 AD2d 777, mot for lv dismissed 75 NY2d 978) directly supports the legality of such extension. In Stephens, the superintendent's contract covered the period of July 1, 1985 to June 30, 1988. On June 16, 1987, the board voted an extension to June 30, 1991. Following a board election in May 1988, the new board voted on September 20, 1988 to terminate the superintendent's contract. On appeal, the Commissioner sustained the superintendent's claim. Because neither the length of the contractual "period before or after the time of extension" exceeded five years, there was no violation of Education Law '1711(3), which sets a maximum period of five years, and no reason to find the contract extension invalid. 28 Ed Dept Rep at 271. As applied to the facts in the case now before me, I reach the same conclusion. See Matter of Northup, 24 Ed Dept Rep 262; Matter of Venezia, 19 id. 273.

There is venerable authority for the proposition that municipal and governmental boards should not be able to bind their successors to long term contractual provisions (Abrams v. Horton, 18 AD 209; Connelly v. Commissioner, 32 Misc 489; Vacheron v. City of New York, 34 Misc 420; Mack v. Mayor, 37 Misc 371), and the principle has been applied to school districts (Ferkin v. Board of Education, 253 AD 751, rev'd on other grounds 278 NY 263; Matter of Vassallo, 14 Ed Dept Rep 256, annulled sub nom Matter of Harrison CSD v. Nyquist, 83 Misc 2d 1042, aff'd 59 AD2d 434). However, the courts have always recognized an exception where a specific statutory provision authorizes such a long term contractual arrangement (see, e.g., Murphy v. Erie County, 60 Misc 2d 954, 34 AD2d 295, 28 NY2d 80). Education Law '1711(3) is such a provision. Indeed, every time a board enters into a multiyear contract pursuant to that provision, it necessarily binds successor boards.

Although I am constrained to recognize the legality of the eleventh hour contract extension voted by a bare majority of the former board in this matter, I do not endorse the wisdom of its action. The majority acted in a fundamentally antidemocratic manner in arrogating to itself authority over the superintendency for the maximum period allowed by law, although it knew it had lost its mandate in the election.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that petitioner's contract is effective through January 31, 1998, and

IT IS ORDERED that the parties comply with same throughout its effective period.

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