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Decision No. 14,066

Appeal of RICHARD S. MORRIS, DOROTHY HARRIS, BARBARA WEINSCHENK and ROBERT F. FLACKE, SR. from action of the Board of Education of the Lake George Central School District relating to district policy on paid consultant leave.

Decision No. 14,066

(December 23, 1998)

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents and qualified voters in the Lake George Central School District, challenge respondent's policy on paid consultant leave for its employees. The appeal must be dismissed.

Petitioners allege that respondent has permitted an elementary school principal, assisted by several elementary school teachers, to undertake multiple consulting engagements at other school districts, both within and without the State each school year, pursuant to a "Paid Consultant Leave Policy for Employees".

The policy was adopted on October 8, 1996 and provides for the granting of paid consultant leave by respondent, upon the recommendation of the Superintendent of Schools. Employees granted leave are required to reimburse the school district for all substitute teacher costs, including, but not limited to, wages, FICA, retirement, and worker's compensation contributions. The policy provides that the employees cannot receive additional pay for any consultant services during the district's contractual hours and limits the leave to a maximum of two days during each school year. The policy requires the employees to indemnify the school district from liability arising out of their consultant activities, and requires the employees to make the school districts receiving consultant services "fully aware" of the policy. The policy states that it is respondent's expectation that the employees will share the benefits of the experience with the district, and expressly provides that the employee performing consultant services is not acting on behalf of the district and that the services are outside the scope of the employee's duties as an employee of the school district.

Petitioners contend that such policy "creates a nonconformity" with the collective bargaining agreement for professional staff in the Instructional Negotiating Unit ("Professional Agreement"), violates the district's Code of Ethics and violates General Municipal Law section 806. Furthermore, petitioners allege that respondent is lax in its oversight of the consulting activities. Petitioners allege that the specific teaching techniques and practices taught by the principal and participating teachers are proprietary to the Lake George Central School District, and contend that the district is therefore entitled to an equitable share of the net proceeds generated from the consulting engagements. Petitioners request that I order respondent to modify its policy to provide that the district manage and have overall responsibility for any consulting engagements and that the district share in an equitable manner the net proceeds from such engagements.

Respondent denies that its policy violates the Professional Agreement, the district's Code of Ethics or General Municipal Law "806. Respondent denies that the teaching practices and techniques presented during the consultant engagements are proprietary to the district, and alleges that the consulting services are performed exclusively on the participating employees' vacation or private time. Respondent also contends that petitioners lack standing to challenge the policy's compliance with the collective bargaining agreement; the petition fails to state a cause of action upon which relief may be granted; the petition does not contain a clear and concise statement of the claim showing petitioners are entitled to relief; and that the petition is improperly verified.

Before proceeding to the merits, I will address respondent's procedural assertions. A petition must contain a claim showing that petitioner is entitled to relief, a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioner's claim and the act(s) complained of (8 NYCRR "275.10; Appeal of Brousseau, 37 Ed Dept Rep 295). In cases where petitioners are proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when there is no evidence of prejudice to the opposing party (Appeal of Bowers, 34 Ed Dept Rep 603). I find that petitioners' claims and the relief requested are sufficiently stated in the petition to enable respondent to adequately address petitioners' claims in its answer. Because respondent has failed to establish that it was prejudiced by petitioners' drafting, I will not dismiss the appeal on that basis. Accordingly, I decline to dismiss the appeal for failure to state a claim or failure to state a cause of action. However, I note that certain allegations in the petition refer to allegedly improper conduct of the elementary school principal and teachers who participate in the consultant activities. Any party whose rights would be adversely affected by a determination of an appeal in favor of the petitioners must be joined as a necessary party and, therefore, those portions of the appeal pertaining to allegedly improper conduct by the principal and the teachers must be dismissed (Application of Deitz, 35 Ed Dept Rep 261; Appeal of Strada, 34 id. 629). Thus, I will only consider petitioners' claims with respect to the propriety of respondent's paid consultant leave policy.

There is no merit to respondent's contention that the petition is improperly verified. The petition is verified by petitioner Morris. Respondent claims that there is no indication that the other petitioners have authorized Mr. Morris to verify that petition on their behalf or that they are aware that the petition has been commenced. However, "275.5 of the Commissioner's Regulations merely requires that the petition be verified by at least one of the petitioners, and there is nothing in the Commissioner's Regulations relating to appeals brought pursuant to Education Law "310 that requires a showing that the petitioners have authorized the petitioner who verified the petition to act on their behalf. In any event, where a petitioner does not wish to be included in an appeal the appropriate remedy, in most instances, is to amend the petition to delete that particular petitioner, rather than dismiss the petition. Each petitioner named in the appeal is presumed to have authorized the commencement of this appeal, absent a showing to the contrary, and respondent offers no proof that any of the petitioners named in this appeal do not wish to be included as such.

With regard to standing, an individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Garwood, 35 Ed Dept Rep 297, 298; Appeal of Shabot, 35 id. 289, 290). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Lubell and Faraone, 4 Ed Dept Rep 71). In this appeal, petitioners allege that respondent's policy on paid consultant leave "creates a nonconformity" with a collective bargaining agreement pertaining to certain district employees. Petitioners describe themselves as "qualified voters and aggrieved citizens" and contend that respondent's policy creates a new form of paid leave that was not negotiated when the current Professional Agreement was made and that the district has suffered financial detriment as a result. However, mere status as a resident does not, in and of itself, confer capacity to seek review of the actions of a board of education with respect to its employees (Appeal of Vaughn, et al, 33 Ed Dept Rep 550). Therefore, petitioners lack standing to challenge the paid consultant leave policy on the basis of alleged "noncomformity" with the Professional Agreement. Even if petitioners had standing, the record does not establish petitioners' contention that the paid consultant leave is inconsistent with the Professional Agreement, since the agreement does not expressly prohibit such leave and, to the contrary, contains a provision in Article XIII, D., which provides that "[o[ther types of leave may be approved by the Board at its discretion".

Respondent also contends that petitioners' reply is not responsive to respondent's affirmative defenses and contains additional materials and arguments not contained in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Rampello, 37 Ed Dept Rep 153; Appeal of Lawson, 36 id. 450; Appeal of Brush, 34 id. 273). Therefore, I will not consider those portions of petitioners' reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer. In addition, both petitioner and respondent have submitted additional papers, which I have accepted for consideration in this appeal. However, to the extent such materials raise new issues that are not relevant to this appeal they will not be considered (Appeal of Sherman, 36 Ed Dept Rep 168).

Petitioners allege that the paid consultant leave policy violates paragraphs F and G of the district's Code of Ethics. Paragraph F provides, in pertinent part:

Investments in Conflict with Official Duties - A Board member or employee shall not invest or hold any investment directly or indirectly in any financial business, commercial, or other private transaction which creates a conflict with official duties . . .

Paragraph G provides:

Private Employment – A Board member or employee shall not engage in, solicit, negotiate for, or promise to accept private employment, or render services for private interests when such employment or service creates a conflict with or impairs the proper discharge of duties as a Board member or employee of the School District.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief by presenting clear and convincing evidence (8 NYCRR "275.10; Appeal of Acme Bus Corporation, 37 Ed Dept Rep 219; Appeal of McDougald, 34 id. 424). To establish a violation of the district's Code of Ethics, petitioners must establish that the consulting activity "creates a conflict with official duties", with respect to paragraph F, or "creates a conflict with or impairs the proper discharge of duties", with respect to paragraph G. Petitioners have failed to meet this burden.

Education Law "1709 authorizes a board of education to manage and administer the affairs of the school district (Appeal of Pulvermacher, 36 Ed Dept Rep 333; Appeal of Marek, 35 id. 314). Consistent with this authority, respondent has adopted a paid consultant leave policy. The policy statement of purpose indicates that respondent has determined that the school community benefits from its staff performing consultant work outside the district in their specialized areas, in that such activity "promotes understanding, creativity and maintains focus on the educational profession"; "lends to networking which facilitates sharing of information, ideas, materials and practices"; "establishes professional contacts and resource people who may provide future benefit to the enhancement of our own education programs for our students"; "recognizes our professional obligation to share successful educational practices with a larger community"; and "encourages professional growth . . . which leads to strengthening of practice used with our students." In view of the stated purpose of respondent's policy, and the benefits to the district as well as to participating employees which result from the consultant activities, I do not find that its provision for paid consultant leave on a limited basis and subject to the conditions set forth in the policy creates a conflict with employees' official duties or impairs the proper discharge of employees' duties.

Petitioners further allege that respondent's policy fails to ensure that district employees do not receive additional pay for consultant services during their contractual hours with the district and that respondent is lax in oversight of the consultant activities. I disagree. Respondent's policy specifically provides that "the employee cannot receive additional pay for any consultant services during our district's contractual hours"; requires the employee to reimburse the school district for all substitute teacher costs as a result of paid consultant leave, such as wages, FICA, retirement and workers compensation contributions; and that the employee shall indemnify and hold harmless the school district from liability arising out of the employee's consultant activities. These are adequate safeguards. Petitioners' contention that it is not possible to monitor the prohibition against additional pay during employee's contractual hours is merely speculative. There is nothing in the record which establishes that employees are receiving remuneration from two sources at the same time.

Petitioners also allege that the specific teaching techniques and practices taught at the consulting engagements by the principal and participating teachers are proprietary to the district, and contend that the district is therefore entitled to an equitable share of the net proceeds generated from such engagements. Petitioners allege that the district "has funded the development process and provided in its Elementary School the Educational Laboratory for the evolution of the teaching techniques and practices" and that the district, in receiving no "return on its investment" is being 'defrauded'. However, respondent denies that the teaching practices and techniques are proprietary to the district, and argues that the techniques and practices of multiple age grouping, clusters, and team teaching that are presented at the consulting engagements were not developed by the district, are not unique to the district and are presently used and applied in many school districts. Upon the record before me, I find that petitioners have failed to establish that the teaching techniques and practices are proprietary to the district so as to entitle the district to an equitable share of the proceeds from the consulting engagements undertaken by the principal and participating teachers. Other than petitioners' bare allegations that the district has 'invested' in the development of the teaching techniques and skills which are the subject of the consultant activities, there is nothing in the record to establish that such techniques and skills are so unique and distinctive to the district so as to establish a proprietary interest.

I also find without merit petitioners' contention that respondent's paid consultant leave policy "sanctions illegal conduct and thereby violates" the provision of General Municipal Law "806(1), which provides: "[a code of ethics] may regulate or prescribe conduct which is not expressly prohibited by this article but may not authorize conduct otherwise prohibited." First of all, the provision is directed to a code of ethics rather than a school district policy. Petitioners have failed to establish that respondent's code of ethics authorizes conduct otherwise prohibited by law; to the contrary, as discussed above, petitioners contend that the school policy on paid consultant leave violates respondent's code of ethics. Secondly, as discussed above, petitioners have failed to establish that the consultant activities as authorized by the school policy are prohibited by law.

I have examined petitioners' remaining contentions and find them to be without merit.

Accordingly, the appeal must be dismissed in view of my finding that respondent's paid consultant leave policy is within its authority and rationally related to a legitimate district interest (Appeal of Epstein, 34 Ed Dept Rep 572).

THE APPEAL IS DISMISSED.

END OF FILE