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Decision No. 13,538

Appeal of JOHN V. FEDERICO from action of the Board of Education of the Union Free School District of the Tarrytowns, Maureen Barbelet, President; Laura Copland, Mary McGee, Jimmy Warren, Gordon Ferguson and Andre Valdespino, Members of the Board of Education; Donald Kusel, Superintendent of Schools; Susan Heiferman, Director of Instruction and Personnel; Carol Conklin, Principal; Theresa Waterbury, Assistant Principal; and Samuel Ralabate, Chairman-Music Department, regarding termination of a probationary teacher.

Appeal of the CONCERNED PARENTS OF TARRYTOWN from action of the Board of Education of the Union Free School District of the Tarrytowns regarding termination of a probationary teacher.

Decision No. 13,538

(January 23, 1996)

Monroe Yale Mann, Esq, attorney for petitioner John V. Federico

Plunkett & Jaffe, P.C., attorneys for respondents, Phyllis S. Jaffe

and Howard M. Miller, Esqs., of counsel

MILLS, Commissioner.--Petitioners challenge respondents' dismissal of petitioner John Federico, a probationary teacher. In a separate appeal, petitioner Federico challenges his dismissal and seeks removal of six members of the Board of Education of the Union Free School District of the Tarrytowns and five school officials ("respondents") in connection with his dismissal. Because the appeals are based on the same facts, they are consolidated for decision. The appeals must be dismissed.

Petitioner Federico was a first year probationary music teacher employed by respondent Board of Education of the Union Free School District of the Tarrytowns during the 1994-95 school year. On April 12, 1995, the superintendent of schools notified petitioner that, at respondent board's May 25, 1995 meeting, he would recommend the termination of petitioner's employment effective June 30, 1995. The rationale for Federico's termination were his alleged failure to provide lesson plans and unit overviews and failure to start classes on time. Petitioner Federico disputed these contentions.

Significant public controversy followed the superintendent's recommendation to dismiss Mr. Federico, but respondent board voted at its May meeting to discontinue his services. These appeals ensued. Petitioners' requests for interim relief pending a determination on the merits of the appeals were denied on July 17, 1995.

Petitioners allege that respondent had no basis to dismiss petitioner Federico and acted in bad faith. Petitioner Federico alleges that he has been defamed by respondent's conduct and requests a name-clearing hearing. Petitioner Federico also seeks the removal from office of the named board members and school officials. Petitioners request Mr. Federico's reinstatement.

Respondents contend that they properly dismissed petitioner Federico and that there is no basis for removing the named board members and school officials. Respondents raise a number of procedural defenses, including improper service and lack of standing.

Before reaching the merits, I will address respondents' procedural arguments. Respondents argue that the Concerned Parents of Tarrytown lack standing to bring this appeal. Neither petitioner's status as residents of the district nor as parents of students in the district confer the capacity to seek judicial review of the actions of the board of education with respect to its employees (Appeal of Nolan, et al., Decision No. 13492, October 23, 1995; Appeal of Reed, et al., 33 Ed Dept Rep 216; Appeal of Pecorale, et al., 31 id. 493; Appeal of Strober, 30 id. 4). Significantly, the Concerned Parents of Tarrytown have neither alleged nor proven that any of its members were individually affected by respondents' decision to dismiss petitioner Federico. Furthermore, as respondents note, petitioner Federico himself has standing to challenge this action, as the individual actually aggrieved by the board's action. Thus, the appeal brought by Concerned Parents of Tarrytown is dismissed for lack of standing.

Respondents also contend that petitioner Federico did not effect personal service upon the individual respondents, as required by 8 NYCRR 275.8(a). The record indicates that respondents Kusel, Heiferman, Waterbury, Conklin and Ralabate were personally served on June 23, 1995. However, respondents Barbelet, Copland, McGee, Warren, Ferguson and Valdespino were not personally served. Furthermore, under 8 NYCRR 277.1(b), notice must be given to the officer whose removal is sought distinctly stating the grounds for removal. My review of the record indicates that petitioner Federico failed to personally serve six of the individual respondents and failed to provide the notice of removal required to all the individual respondents targeted for removal. Moreover, I note that respondents Heiferman, Conklin, Waterbury and Ralabate are not "school officers" as that term is used under Education Law '306, and thus are not subject to removal under this section. Accordingly, petitioner's petition must be dismissed for defective notice and service.

The appeals must also be dismissed on the merits. Pursuant to Education Law '3012(1)(a), the services of a probationary teacher may be discontinued at any time during the probationary period and dismissal of a probationary teacher will not be set aside unless the teacher shows that a board terminated service for a constitutionally impermissible reason or in violation of a statutory proscription (James v. Bd. of Educ. of Central School District No. 1 of Towns of Orangetown & Clarkson, 37 NY2d 891, 378 NYS2d 371; Appeal of Janes, 33 Ed Dept Rep 6; Appeal of Benn-Abbey, 32 id. 141; Appeal of Soans, 25 id. 142). The record here indicates that respondent had adequate reasons for petitioner Federico's dismissal: failure to begin classes on time and failure to provide lesson plans and unit overviews. Although in his reply petitioner Federico alleges that his termination was due to his filing of a union grievance, there is no evidence in the record to support that claim. Petitioner Federico's other allegations regarding the reasons for his dismissal are similarly unsupported. Therefore, there is no basis to substitute my judgment for that of respondents regarding petitioner Federico's dismissal.

Petitioner Federico also seeks a name-clearing hearing in this matter. There is, however, no basis to grant his request. A probationary teacher serves at will and is not entitled to a hearing unless it can be shown that the teacher's dismissal was for a constitutionally impermissible reason (Castro v. Bd. of Ed., 777 F. Supp. 1113; Garbo v. Bd. of Ed., 61 AD2d 983, 402 NYS2d 606; Bergstein v. Bd. of Ed., 42 AD2d 591, 344 NYS2d 732; Appeal of Madden-Lynch, 31 Ed Dept Rep 411) or that the reasons given have a stigmatizing effect upon the employee and the employer disseminates those reasons (Lentilie v. Egan, 61 NY2d 874, 474 NYS2d 467).

The record in this case indicates that respondents dismissed petitioner Federico based on his failure to begin classes on time and to provide lesson plans and unit overviews. Failure to follow district policies or a deficiency in teaching methods do not rise to a stigma of constitutional proportions (see LaBorde v. Franklin Parish School Bd. 510 F2d 590; Orshan v. Anker, 550 F. Supp. 538; Lombard v. Bd. of Ed., 440 F. Supp. 577). Moreover, although there was significant public controversy surrounding petitioner Federico's dismissal, petitioner, not respondents, released his personnel file to the public and sought public involvement. There is no allegation or proof that the reasons for dismissal were made available to future employers or made public by respondents (Gentile v. Wallen, 562 F2d 193). Finally, although petitioner Federico claims that he was stigmatized by respondents' statements, respondents point out that petitioner Federico's reputation in the community remains positive and that the Concerned Parents of Tarrytown clearly believe petitioner Federico is a dedicated and outstanding music teacher who should have been retained as an employee. Based upon this record, there is no basis to order a name-clearing hearing. Any alleged claims petitioner Federico may have against respondents for defamation based on his dismissal may be raised in a court of competent jurisdiction.

Petitioner Federico also seeks the removal from office of respondents. Education Law '306 provides, in pertinent part:

1. Whenever it shall be proved to his satisfaction that any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer...has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education, said commissioner, after a hearing at which the school officer shall have the right of representation by counsel, may, by an order under his hand and seal, which order shall be recorded in his office, remove such school officer from his office.

With respect to the merits of this application, school district officers can only be removed under '306 when they engage in a "wilful violation or neglect of duty." This means that there must be "a purpose or intent to disregard a lawful duty or to violate a legal requirement" (Application of Kozak, 34 Ed Dept Rep 501; Matter of Felicio, et al., 19 id. 414; Matter of Winograd, et al., 17 id. 213; Matter of Trigilio and Iannotta, 14 id. 385). On the record before me, I find no wilful violation of law or neglect of duty on the part of respondent school officers regarding Federico's dismissal.

I have considered the parties' remaining contentions and find them without merit.

THE APPEALS ARE DISMISSED.

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