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Decision No. 13,347

Appeal of ZEADER GOLD from action of the Board of Education of the Hempstead Union Free School District regarding termination of employment.

Decision No. 13,347

(January 25, 1995)

Cullen and Dykeman, Esqs., attorneys for respondent, Thomas B. Wassel, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals her dismissal by the Board of Education of the Hempstead Union Free School District ("respondent"). The appeal must be sustained in part.

Although the record is unclear, it appears that on August 30, 1993, respondent granted petitioner a probationary appointment as deputy superintendent for curriculum and instruction. By letter dated June 17, 1994, respondent's superintendent notified petitioner that he intended to recommend to respondent at its June 20, 1994 meeting that her employment be terminated effective July 20, 1994. In the letter, the superintendent set forth the reasons for his recommendation and offered petitioner an opportunity to file a written response. At its meeting of June 20, 1994, respondent accepted the superintendent's recommendation. This appeal ensued.

Petitioner asserts that she is entitled to reinstatement because she was not properly supervised or counseled regarding her performance. She maintains that prior to June 17, 1994, she had not been informed that her job performance was unsatisfactory. However, the record indicates that the superintendent spoke with petitioner several times about deficiencies in her job performance. In any event, failure to adequately counsel, even if proven, does not constitute a basis upon which to reverse respondent's actions in this matter (SeeHauppauge Classroom Teachers Assn. v. Millman, 35 AD2d 844, app. dsmd. 28 NY2d 483; Appeal of Fusco, 31 Ed Dept Rep 119).

Relying upon Education Law '3031, petitioner contends that she is entitled to reinstatement because respondent failed to give her adequate notice. Respondent contends that Education Law '3031 is not applicable to administrators, such as petitioner. In support of its position, respondent cites Appeal of Charland, 32 Ed Dept Rep 291, 294. Respondent, however, ignores the fact that subsequent to the Charland decision, the Legislature and the Governor amended Education Law '3031. Pursuant to Chapter 691 of the Laws of 1993, Education Law '3031 was amended to also apply to "administrators and supervisors."

Pursuant to Education Law '3031, a probationary teacher or administrator is entitled to be notified of a recommendation to discontinue his or her services at least 30 days prior to the board meeting at which that recommendation is to be considered. The statute further provides the teacher or administrator with an opportunity to ask for and reply in writing to the reasons for the recommended dismissal. In this case, respondent failed to comply with the timely notice provisions of '3031, advising petitioner of the recommendation to discontinue her services only three days prior to the board meeting at which the recommendation was to be considered.

The remedy for violation of Education Law '3031, however, is not the automatic reinstatement of the teacher or administrator to her former position. Nor does equity require the board to provide a windfall to petitioner in the form of salary beyond July 20, 1994, since she performed no services for the district after that date (Matter of Zenic, 13 Ed Dept Rep 11; Zunic v. Nyquist, et al., 48 AD2d 378, aff'd 40 NY2d 962; Rathbone v. Bd. of Ed., 47 AD2d 172). Rather, the relief granted must remedy the actual harm petitioner has suffered. Here, respondent's failure to comply with '3031 injured petitioner by depriving her of the opportunity to present a written response to the superintendent's recommendation. Therefore, the superintendent is directed to inform petitioner of the date of the board meeting at which his recommendation concerning petitioner is to be reconsidered, such board meeting to be no later than 60 days from the date of this decision. Petitioner shall then be allowed to submit a response to the district clerk no later than seven days prior to the date of the board meeting. At the board meeting, the board shall consider any written response made by petitioner and shall affirm or alter its vote of June 20, 1994. Any response supplied by petitioner shall be included in the records maintained by respondent relating to petitioner (SeeAppeal of Ruff, 33 Ed Dept Rep 648).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent proceed expeditiously in accordance with this decision.

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