Decision No. 13,280

(October 31, 1994)

Anthony J. LaFache, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals his dismissal as director of personnel for the Board of Education of the City School District of the City of Utica ("respondent"). The appeal must be dismissed.

On April 16, 1991, respondent appointed petitioner to a probationary position as director of personnel effective May 17, 1991. On February 8, 1994, the superintendent recommended that petitioner be granted tenure as director of personnel. Respondent board voted in executive session on that date to deny petitioner tenure. On March 31, 1994, petitioner requested the reasons for his denial of tenure and received a written explanation from respondent's attorney on April 9, 1994. On April 27, 1994, petitioner responded to respondent's letter. Because respondent board allegedly did not deny petitioner tenure for the reasons enunciated in the letter of April 9, 1994, respondent board voted again to deny petitioner tenure at a special meeting held on May 10, 1994. This appeal ensued. Petitioner's request for interim relief pending a decision on the merits of his appeal was denied on May 23, 1994.

Petitioner alleges that respondent's action of denying him tenure despite the superintendent's favorable recommendation was arbitrary, capricious and malicious. Petitioner seeks an order reinstating him to his position plus costs, fees and expenses incurred in connection with this appeal. Respondent contends that it properly denied tenure.

Under Education Law '2509(1)(b), the services of a probationary administrator in a city school district may be discontinued at any time during the probationary period by a majority vote of the board of education. In this case, even though the superintendent recommended petitioner for tenure, the board of education twice voted to discontinue petitioner's services. A board of education may accept or reject the recommendation of a superintendent of schools that tenure be granted (McMaster v. Owens, 193 Misc. 284, aff'd 275 AD 506; Matter of Nyboe v. Allen, 10 Misc.2d 895, aff'd 7 AD2d 822; Matter of Saderholm, 12 Ed Dept Rep 207). Moreover, it has broad discretion in the dismissal of probationary employees and the granting of tenure (Matter of Pinto v. Wynstra, 43 Misc. 2d 363, aff'd 22 AD 2d 914; Matter of Butler v. Allen, 29 AD2d 799; Matter of Tischler v. Bd. of Ed., 37 AD2d 261).

The reasons advanced by respondent for its denial of tenure include: (a) petitioner's failure to report changes in the recent teachers' contract which resulted in a monetary loss to the district, (b) loss of numerous grievances against the district (c) complaints against petitioner by union personnel and mishandling of the office of personnel and (d) a loss in confidence by respondent's board in petitioner's abilities. While petitioner replies to the reasons given by respondent, and alleges that respondent's decision not to grant him tenure was based in part on petitioner's failure to hire individuals recommended by individual board members, petitioner fails to prove that claim. In an appeal to the Commissioner of Education, the petitioner bears the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Pickreign, 28 id. 163). Other than bald assertions on this issue, petitioner offers no evidence to show that he was denied tenure because he refused to follow the board's employment recommendations.

THE APPEAL IS DISMISSED.

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