Decision No. 13,845

(November 3, 1997)

MILLS, Commissioner.--Petitioner, a member of the Board of Education of the Forestville Central School District, challenges respondents' actions concerning the early termination of the superintendent's employment contract. The appeal must be dismissed.

Respondent Rodriguez was employed as superintendent of the Forestville Central School District ("district") until August 4, 1996. His employment contract with the district contained a termination clause that permitted him to terminate his employment prior to the expiration of the contract (June 30, 1997) by giving the board of education written notice 90 days prior to the effective date of termination. In addition, the contract's termination clause permitted the board and the superintendent to terminate the superintendent's employment at any time on such terms as they mutually agreed upon in writing. On June 5, 1996, Rodriguez was informed that he had been appointed superintendent of another school district, effective August 5, 1996. He immediately notified respondent Duliba, then president of the district's board of education. Rodriguez discussed with Duliba a possible accommodation of the 90-day notice requirement so that he could begin his new job on August 5. Rodriguez suggested that he return 31 unused vacation days and a pro-rated portion of a $10,000 performance award that was due to him, in exchange for the board's agreement to waive the 90-day notice requirement.

On June 19, 1996, in an executive session of the board, Rodriguez tendered his resignation and the waiver plan was discussed. At the regular meeting of the board on that date, upon petitioner's motion, the board unanimously voted to accept Rodriguez's resignation, effective August 4, 1996. On August 26, 1996, petitioner filed this appeal. Thereafter, on September 4, 1996, the board passed a resolution to ratify its June 19, 1996 executive session agreement with Rodriguez, including the surrender of vacation days and part of his performance pay, in return for waiving the 90-day notice requirement.

Petitioner alleges that respondent Duliba agreed, without the consent or authorization of the board, to allow Rodriguez to violate his employment contract by allowing him to leave 45 days early. Petitioner also contends that Duliba allowed Rodriguez to use the wrong salary figure to compute his per diem pay rate, thereby costing the district $12,500. Petitioner requests that I censure respondent Rodriguez, remove respondent Duliba from the board and direct that the district be reimbursed the sum of $12,500.

Respondents contend that the board and Rodriguez mutually agreed upon the terms for release from the contract at the June 19, 1996 executive session, and that any failure to record the terms of the agreement were cured when the board ratified the agreement with a formal resolution on September 4, 1996. Respondents submitted a copy of the board minutes for June 19, 1996, which contains the record of the unanimous vote by the board to accept Rodriguez's resignation, effective August 4, 1996. Respondents also submitted a copy of the September 4, 1996 resolution, which contains the agreed upon surrender of vacation days and pro-rated portion of the performance bonus.

In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR '275.10; Appeal of Samuels, 36 Ed Dept Rep 85; Appeal of Nash, 35 id. 203) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Samuels, supra; Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327). In this case, petitioner merely states in two sentences, without any supporting evidence, that respondent Duliba allowed Rodriguez to terminate his contract early without the consent of the board and that respondents used incorrect salary figures to calculate Rodriguez's final salary. The evidence submitted by respondents clearly indicates that the entire board discussed and approved the early release date and accepted a return of 31 vacation days and a pro-rated portion of a performance bonus in exchange for that release. In an affidavit submitted by respondents, Rodriguez states that his salary figures were arrived at in consultation with the district's assistant business manager and were submitted to the board for discussion. Furthermore, it appears that although the assistant business manager initially miscalculated the salary, this error was eventually corrected. Thus, it does not appear that the district overpaid Rodriguez.

On the record before me, there is simply no basis for the removal of respondent Duliba since there is no evidence of a willful violation or neglect of duty under the law (Education Law '306(1); Application of Cobler, 35 Ed Dept Rep 176). Furthermore, petitioner has not provided any evidence that there is a legal right to any relief arising from respondents' actions. Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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