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Decision No. 13,856

Application of JANICE A. BLAKE for removal of Robert Zimmerman as Superintendent of Schools for the Panama Central School District.

Application of MELANIE EDDY for removal of Robert Zimmerman as Superintendent of Schools for the Panama Central School District.

Application of ELLEN L. FAIRBANK for removal of Robert Zimmerman as Superintendent of Schools for the Panama Central School District.

Application of SUSAN WATERMAN for removal of Robert Zimmerman as Superintendent of Schools for the Panama Central School District.

Decision No. 13,856

(December 30, 1997)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, David A. Farmelo, Esq., of counsel

MILLS, Commissioner.--In these four separate appeals, petitioners seek the removal of Robert E. Zimmerman ("respondent") from his position as Superintendent of Schools in the Panama Central School District. The applications are consolidated for decision because they arise out of the same factual context and seek identical relief. The applications must be denied.

On March 1, 1996, the Panama Central School District held a family swim night at a school swimming pool. An incident occurred involving a BB-pellet gun and resulting in disciplinary action against a number of students, including the children of several of the petitioners who now seek removal of the superintendent. Two of the disciplinary actions were appealed to me, and have been dismissed. The facts of the incident and subsequent discipline are fully set forth in Appeal of Eddy (36 Ed Dept Rep 359) and Appeal of Blake (37 id. _____, Decision No. 13852, dated December 29, 1997) and will not be repeated here.

These applications seek the removal of Superintendent Zimmerman because of actions he took during the disciplinary process. All four applications complain that he wrongly continued the suspension of Thomas Blake after the decision and order of the Chautauqua County Supreme Court dated May 21, 1996, remanding the matter for a second disciplinary hearing. Three of the four petitions also complain that on September 16, 1996, the superintendent wrongly extended the suspension of Thomas Blake, which was due to terminate on October 11, to November 8. The petitions make various other allegations of wrongdoing by the Superintendent, but I am unable to discern any discrete action on his part which occurred after September 16, 1996.

Respondent generally denies any willful violation or neglect of duty, and argues that the applications were untimely commenced. Respondent claims that the petitions do not comply with the specific pleading requirements set forth in 8 NYCRR "277.1(a), and that, in any event, the claims that are set forth in the petitions do not amount to a willful violation or neglect of duty under the Education Law, and therefore do not provide a basis for his removal pursuant to Education Law "306(1).

The applications of Fairbank, commenced November 26, 1996, and Waterman, commenced December 4, 1996, were made more than thirty days after the latest act complained of, in violation of 8 NYCRR "275.16, and are dismissed as untimely.

I find that the applications of Blake and Eddy, both commenced October 16, 1996, are also untimely as to all matters complained of prior to September 16, 1996, and are dismissed as to such matters. With respect to the superintendent's increasing the suspension period of Thomas Blake by letter dated September 16, 1996, however, I find that the Blake and Eddy applications are timely.

Education Law "3214(3)(c) provides in pertinent part:

Where a pupil has been suspended in accordance with this section by a superintendent of schools, district superintendent of schools or community superintendent, the superintendent shall personally hear and determine the proceeding or may, in his discretion, designate a hearing officer to conduct the hearing. The hearing officer shall be authorized to administer oaths and to issue subpoenas in conjunction with the proceeding before him . . . The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it. The board may adopt in whole or in part the decision of the superintendent of schools.

Under this provision, a superintendent has considerable discretion in accepting in full or in part the hearing officer's findings of fact (which are not in question in these applications) and in accepting in full or in part the hearing officer's recommendations as to appropriate discipline, which petitioners challenge. This authority is subject to the authority of the board of education to modify the penalty imposed by the superintendent.

In Appeal of Blake, supra, which I dismissed for procedural reasons, I nevertheless discussed the merits of the appeal, and found that the board's determination as to penalty was appropriate. Since the board adopted the superintendent's determination, I have already found that the superintendent's determination was appropriate.

My authority to remove a superintendent under Education Law "306 in circumstances like these is limited to situations where it is proven after a hearing that the superintendent has been guilty of a willful violation or neglect of duty under the Education Law, or willfully disobeying a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. The superintendent's exercise of authority under Education Law "3214(3)(c) in this case does not fall within these limits. These petitions contain neither sufficient allegations of such actions, nor any proof.

I have reviewed the other contentions of the parties, including a claim of deficiencies in one aspect of the district's educational program, and find them without merit in the context of an application pursuant to Education Law "306.

THE APPLICATIONS ARE DISMISSED.

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