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Decision No. 14,193

Appeal of EUGENE BROUSSEAU from action of the Board of Education of the Shenendehowa Central School District and Susan M. Martin, regarding an employment agreement.

Decision No. 14,193

(August 18, 1999)

McCary & Huff, LLP, attorneys for respondents

CATE, Acting Commissioner.--Petitioner, a resident of the Shenendehowa Central School District, challenges the decision of the Board of Education to enter into an employment agreement with its Director of Finance. The appeal must be dismissed.

On May 13, 1998, respondent board and respondent Susan M. Martin, Director of Finance for respondent's district, executed an "employment agreement", effective that date, governing the terms and conditions of Ms. Martin's employment by the district. The agreement provides that it shall continue in effect through June 30, 1999, and that it may be renewed annually thereafter.

Petitioner commenced this appeal on June 9, 1998, seeking rescission of the employment agreement on the ground that respondent board lacks authority to enter into the agreement. In addition, petitioner requests that I direct the State Education Department to prepare a request to the State Legislature for legislation to allow criminal penalties against those who violate State laws relating to education through either ignorance or by design. On July 14, 1998, Commissioner Mills denied petitioner's request for a stay pending a final decision in this appeal.

Before proceeding to the merits, I will address two procedural matters. Respondent has objected to the reply submitted by petitioner on the ground that the document merely reiterates petitioner's position with respect to the facts alleged in his petition, rather than responding to new matters alleged in respondent's answer. 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 Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Thus, while I have reviewed petitioner's reply, I have not considered those portions that contain new information or materials which are not responsive to new material or affirmative defenses set forth in the answer.

I also note that petitioner, in his reply, contends that respondent Martin did not file a separate answer, and that the answer that was filed -- which petitioner characterizes as Superintendent McClure's answer -- is therefore defective since the superintendent cannot attest to respondent Martin's activities. Petitioner is under the mistaken impression that the answer is solely that of respondent board of education and respondent superintendent. However, the answer is submitted on behalf of all three respondents – the board, the superintendent and Ms. Martin. Section 275.12 of the Commissioner's Regulations expressly provides for submission of a joint answer where, as here, common questions of law and fact are involved and the respondents are otherwise united in interest. Section 275.5 of the Regulations requires that such answer need only be verified by a respondent who is familiar with the facts. In this case, the answer is properly verified by the superintendent.

In general, a board of education has no inherent powers perse, and possesses only those powers expressly delegated by statute or necessarily and reasonably implied therefrom (Appeal of Bode, 33 Ed Dept Rep 260, Decision No. 13,043). Pursuant to Education Law "1709(33), as made applicable to central school districts under Education Law ""1804(1) and 1805, a board of education of a central school district shall "have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by this chapter or other statutes." Relying upon this provision, respondent board contends that it has inherent authority to enter into employment agreements establishing the terms of employment for its employees.

There are a limited number of provisions in the Education Law that expressly authorize a board of education to employ specified individuals. Education Law "1709(15) authorizes a board to appoint librarians as necessary; "1709(16) authorizes a board to contract with and employ qualified teachers, and to employ "such persons as may be necessary to supervise, organize, conduct and maintain athletic, playground and social center activities"; and "1709(20-a) authorizes a board to appoint an auditor. Education Law "3012 authorizes a board to appoint teachers and certain administrators to probationary periods leading to tenure. Education Law "1711 authorizes a board to appoint a superintendent of schools. Article 43 of the Education Law authorizes the appointment of a district clerk, a collector and a treasurer.

However, the absence of any express provision for the employment of individuals other than those just described does not foreclose a board from employing individuals in such positions as are necessary to operate and maintain the school district, because the employment of such persons is a reasonable and necessary means for the board to fulfill its duty to superintend, manage, and control the affairs of the district pursuant to "1709(33). The authority to contract with employees so hired is implicit in the act of employing such individuals, since such act in itself creates a contract, whether express or implied, oral or written (52 NY Jur 2d, Employment Relations "52). I further note that the courts have recognized that a board of education, as a public authority, possesses a common-law right to contract with teachers and other necessary employees for their employment (Matter of O'Connor v. Emerson, 196 AD 807, aff'd 232 NY 561; High v Board of Education, 169 Misc 98; 94 NY Jur 2d, Schools, Universities, and Colleges "221).

Moreover, the lack of an express statutory provision authorizing the board to contract, such as that found in Education Law ""1709(16) and 3011 with respect to teachers, or Education Law "1711 with respect to superintendents, is not, contrary to petitioner's assertion, conclusive in matters concerning the board's general authority to contract. In Matter of Brewster, 18 Ed Dept Rep 108, Decision No. 9766, aff'dsubnom., Little Falls City School Dist. v. Ambach, 68 AD2d 995, appeal denied, 47 NY2d 711, rearg. denied, 48 NY2d 656 (1979), Commissioner Ambach, noting that agreement as to such matters as duties and salary "is the common practice", held that the terms and conditions of a superintendent's employment, other than its duration (which in this instance was specifically prohibited by certain court decisions), may be subject to a contract between the superintendent and the board of education, despite the absence of an express provision in statute at that time which authorized such contract (see Appeal of Prattella, 37 Ed Dept Rep 693, Decision No. 13,960). The "common practice" of a board to enter into contracts governing terms and conditions of employment, cited by Commissioner Ambach, was recognized by the Court in Courtemanche v Enlarged City School Dist. of the City of Middletown, 686 F. Supp. 1025 (S.D.N.Y. 1988). The court found that "[t]o the extent the contract is not inconsistent with other statutory conditions, it should be given force" (Courtemanche, supra, p. 1031). I note that petitioner does not allege, nor do I find, that any provisions of the employment agreement at issue here violate or are inconsistent with statutory provisions. Petitioner merely contends that the board lacks authority to enter into the agreement in the first instance.

Accordingly, I find that respondent board's action in entering into an employment agreement with respondent Martin, with respect to the terms and conditions of her employment in the district as Director of Finance, is authorized as an implicit, reasonably necessary power of the board to discharge its duties with respect to the superintendence, management and control of the district, and in addition is authorized pursuant to the board's common law right to contract.

With respect to petitioner's request that certain legislation be proposed and enacted, an appeal to the Commissioner pursuant to Education Law "310 is not an appropriate forum to raise such a request.

THE APPEAL IS DISMISSED.

END OF FILE.