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Decision No. 13,501

Appeal of JAMES F. BOYLE from action of the Board of Education of the Madrid-Waddington Central School District, regarding employment as superintendent.

Decision No. 13,501

(November 2, 1995)

Jack J. Sissman, Esq., attorney for petitioner

Arthur F. Grisham, Esq., attorney for respondent

O'Hara & O'Connell, P.C., attorneys for New York State Council of School Superintendents, amicus curiae, Dennis G. O'Hara, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner James Boyle challenges his dismissal by the Board of Education of the Madrid-Waddington Central School District ("respondent"). Because the appeals involve common issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

Petitioner is the superintendent of the Madrid-Waddington Central School District ("the district"). He began in this capacity on July 1, 1984 pursuant to a three-year contract which was to expire on June 30, 1987. On February 18, 1986, petitioner and respondent entered into another contract for a five year term, i.e. until June 30, 1992. Finally, on July 21, 1989, three years before the expiration of the existing contract, petitioner and respondent entered into another five year contract. This contract was due to expire on June 30, 1997.

On October 24, 1994, Richard C. Callan, District Superintendent of the St. Lawrence-Lewis BOCES, consulted with petitioner and respondent regarding petitioner's duties. On November 17, 1994, respondent modified petitioner's duties. On February 21, 1995 respondent voted to dismiss petitioner. Finally, petitioner was notified in writing on February 22, 1995 that he was terminated, effective April 24, 1995. This appeal followed.

Petitioner asserts that he was improperly stripped of all statutory authority by respondent and that his contract rights were violated by his dismissal. Petitioner also asserts that determinations were made regarding his employment in contravention of the Open Meetings Law. Respondent contends that petitioner's assertions relating to the modification of his duties are untimely. Petitioner further argues that the contract upon which petitioner relies was illegal at its inception and is, therefore, null and void. Respondent finally claims that the Commissioner has no jurisdiction to review violations of the Open Meetings Law.

Before addressing the merits, I will address the procedural issues raised. An appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Epstein, 34 Ed Dept Rep 572; Appeal of Keen, 32 id. 299; Appeal of Magee, 30 id. 479). The record in this case reflects that respondent modified petitioner's job functions on November 17, 1994. Petitioner commenced this appeal on January 13, 1995, more than 30 days after respondent's action. Petitioner offers no excuse for the delay. Accordingly, those claims relating to the diminution of petitioner's job functions are dismissed as untimely.

Further, I am without jurisdiction to address petitioner's claims regarding respondent's purported violations of the Open Meetings Law. It has been repeatedly held that alleged violations of the Open Meetings Law must be pursued in a judicial proceeding in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules or in a judicial action for declaratory judgment and injunctive relief. They may not be the basis of an appeal to the Commissioner of Education (Public Officers Law '107; Appeal of Gillen, 33 Ed Dept Rep 690; Appeal of Loriz, 33 id. 50). Accordingly, all alleged Open Meetings Law violations are dismissed for lack of jurisdiction.

The remaining question is whether petitioner was dismissed in violation of his contract. I find that he was not, because petitioner did not have a valid contract at the time of his dismissal. As a matter of public policy, New York courts have recognized that municipal and governmental boards should not be able to bind their successors to long term contractual provisions (Abrams v. Horton, 18 AD 208; Connelly v. Commissioner, 32 Misc 489). This holds true for school districts as well (Ferkin v. Board of Education, 253 AD 751, rev'd on other grounds 278 NY 263; Appeal of Nyquist, 83 Misc 2d 1042, aff'd 59 AD2d 434). However, an exception to this general rule exists where a specific statutory provision authorizes a long term contractual arrangement (Murphy v. Erie County, 60 Misc 2d 954, aff'd 34 AD2d 295, aff'd 28 NY2d 80; Appeal of Knapp and Bianco, 34 Ed Dept Rep 207). Education Law '1711(3) is such a provision. Every time a school board enters into a multi-year contract pursuant to that provision, it necessarily binds successor boards. Education Law '1711(3) provides, in pertinent part:

...The services of such a superintendent of schools may be discontinued at any time by a majority vote of the board of education, and upon sixty days notice in writing to the superintendent of schools; except that a board of education may, at its option, enter into a written contract of employment with a superintendent of schools whose appointment has been recommended by the district superintendent of schools, for a period of from one to five years and upon such terms as shall be mutually acceptable, including but not limited to duties, salary, fringe benefits and procedures for termination by either party prior to the expiration of the term of such contract. (emphasis supplied)

Therefore, there is statutory authority for a board of education to enter into a multiple year employment agreement with a school superintendent.

However, in this case the parties, in practical effect, violated the five year statutory limit by creating an eight year obligation. They did so by tacking on to an already existing contract a new five year obligation that would not begin to run until the original contract expired on June 30, 1997. Consequently, the parties had two contracts in effect simultaneously, that, when read together, circumvented the five year statutory prohibition and bound the board for a total of eight years. This is precisely the kind of contractual arrangement the courts have sought to prohibit, and which the Legislature did not intend to except under '1711(3).

This arrangement is clearly distinguishable from those allowed by the Commissioner in Lewiston-Porter CSD v. Sobol, 154 AD2d 777, mot. for lv dismissed 75 NY2d 978; Appeal of Knapp and Bianco, supra; and Appeal of Dillon, 33 Ed Dept Rep 544. In those cases, the parties supplanted their prior contract with a new one. The practical effect of their actions was that only one contract applied at any given time. Provided that the duration of the initial contract or the subsequent contract did not exceed five years, this type of contract was authorized by law (Lewiston-Porter CSD v. Sobol, supra; Appeal of Knapp and Bianco, supra; Appeal of Dillon, supra). (See also, Appeal of Stephens, 28 Ed Dept Rep 269, aff'd sub nom, where the duration of the board's obligation did not exceed five years). Moreover, even a four-year contract providing for its automatic renewal, with a mechanism to avert such renewal, is still only a contractual guarantee of employment for the initial four-year period and is, therefore, consistent with Education Law '1711(3) (Matter of Northup, 24 Ed Dept Rep 262).

In conclusion, while the agreement at issue here is clearly desirable for petitioner, it is inconsistent with Education Law '1711(3) and against public policy, which dictates a limitation on the duration of long term public contracts. Accordingly, I find that the contract executed in 1989 for the period covering 1992 through 1997 is null and void.

Since the 1992-1997 contract is invalid, I find petitioner was employed without the benefit of a contract at the time of his termination. Accordingly, to dismiss petitioner, respondent only had to comply with the dismissal requirements of Education Law '1711(3). This statute requires a majority vote of the board of education and 60 days' written notice to the superintendent of his or her impending discharge. The record reflects that a majority of respondent board voted to dismiss petitioner and respondent gave him 60 days' notice prior to his dismissal. Accordingly, respondent complied with the statutory requirements of Education Law '1711(3) and I find no basis upon which to invalidate petitioner's dismissal.

THE APPEALS ARE DISMISSED.

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