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Decision No. 14,337

Appeal of ANNE G. SPADONE from action of the Board of Education of the City School District of the City of Lackawanna regarding termination of employment.

Decision No. 14,337

(April 12, 2000)

Gross, Shuman, Brizdle & Gilfillan, P.C., attorneys for petitioner, Robert J. Feldman, Esq., of counsel

Carl W. Morgan, P.C., attorney for respondent

MILL, Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of Lackawanna ("respondent") to deny her tenure and terminate her employment effective September 1, 1999. The appeal must be dismissed.

Respondent appointed petitioner to a probationary term as a business teacher effective September 2, 1997. Because petitioner had prior experience as a tenured teacher, her probationary term, as required by Education Law "2509(1), was two rather than three years. On June 21, 1999, the superintendent recommended that respondent grant petitioner tenure effective September 3, 1999. Respondent considered a resolution to grant petitioner tenure at its June 23, 1999 meeting. Three members voted in favor of the resolution to grant tenure, two voted against it, one abstained and one was absent. Thus, the resolution was not approved by a majority of respondent board. By letter dated June 25, 1999, the superintendent notified petitioner that respondent had rejected the recommendation to grant her tenure. The letter stated that the vote was advisory and that respondent would take final action at its July 22, 1999 meeting.

Petitioner requested a written statement of respondent’s reasons for denying tenure in a letter dated June 28, 1999. Respondent discussed the matter in executive session at its July 6, 1999 meeting. In a letter dated that same day, respondent board’s president advised petitioner that she had "demonstrated an unsatisfactory ability to work cooperatively with faculty and staff in the organization of District activities." Petitioner submitted a written response dated July 15, 1999 that included laudatory letters from a number of colleagues.

Respondent again considered a resolution to grant petitioner tenure at its July 22, 1999 meeting. Three members voted in favor of the resolution, three voted against it and one abstained. By letter dated July 23, 1999, respondent’s president notified petitioner that the resolution for her appointment on tenure had failed and that her services as a teacher were "terminated effective SEPTEMBER 1, 1999."

On July 27, 1999, petitioner filed a grievance under the procedure set forth in the collective bargaining agreement between her union and the school district. She sought reinstatement and claimed that respondent violated the agreement when it terminated her. Petitioner’s grievance was denied at two stages and she filed a demand for arbitration on or about September 1, 1999.

Petitioner also commenced an Article 78 proceeding in Supreme Court, Erie County in August 1999. In that proceeding she sought annulment of respondent board’s determination terminating her and reinstatement to her former position. Petitioner commenced this appeal at about the same time. Her petition states that she commenced the appeal for "protective" reasons so that administrative review would be available if the judge determined that petitioner must exhaust other remedies before seeking Article 78 review.

Petitioner seeks an order restoring her to her former teaching position with tenure, back pay and benefits. She asserts that she is entitled to this relief because the superintendent’s recommendation to grant her tenure was not rejected by a majority of respondent board. She contends that the votes of at least four board members are necessary to take any action and that respondent could not "override" the superintendent’s recommendation with fewer than four votes. Petitioner further argues that she should receive tenure because she served out her probation without being properly terminated. Petitioner also asserts that respondent did not meet the timing requirements established in Education Law "3031.

Respondent argues that an affirmative vote of the majority of board members was necessary to grant tenure and that it was proper to deny petitioner tenure when the resolution to appoint her did not receive at least four affirmative votes. Respondent also contends that the superintendent’s recommendation to grant tenure was not binding and that it properly exercised its discretion to deny tenure. Respondent asserts that petitioner has not acquired tenure by estoppel because she was not permitted to serve beyond the expiration of her probationary period. Finally, respondent urges that any failure to meet the timing requirements of the Education Law constituted harmless error.

I must first address a jurisdictional issue. The Commissioner of Education will not entertain an appeal pursuant to Education Law "310 while there is pending in another forum an action involving the same issues and seeking similar relief (Appeal of Phillips, 38 Ed Dept Rep 165, Decision No. 14,008; Appeal of Campbell, 33 id. 132, Decision No. 13,000). We have been advised that Supreme Court, Erie County dismissed petitioner’s Article 78 proceeding on the ground that petitioner’s claims could be reviewed through this appeal. That proceeding therefore does not bar petitioner from pursuing this appeal.

However, petitioner also commenced a grievance challenging her termination and seeking reinstatement, the same relief she requests here. She has made a demand for arbitration of that grievance. The record does not reveal whether the grievance proceeding has reached a final resolution; therefore I must assume that it is continuing. By first choosing to have her termination reviewed through a grievance proceeding, petitioner has elected her remedy (see Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Cerilli, 33 Ed Dept Rep 385, Decision No. 13,087). Because it would be contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy, this appeal must be dismissed.

Even if the appeal were not dismissed on jurisdictional grounds, it would be dismissed on the merits. A board of education has broad discretion in granting or denying tenure and need not accept the recommendation of the superintendent to grant tenure (Appeal of Tyler, 34 Ed Dept Rep 198, Decision No. 13,280).

The board’s discretion is reflected in Education Law "2509(2), which states in pertinent part:

At the expiration of the probationary term of any persons appointed for such term, or within six months prior thereto, the superintendent of schools shall make a written report to the board of education recommending for appointment on tenure those persons who have been found competent, efficient and satisfactory. By a majority vote the board of education may then appoint on tenure any or all of the persons recommended by the superintendent of schools. (emphasis added).

The plain language of the statute provides that a majority vote of the board is required to appoint a probationary employee on tenure. The resolutions proposing to grant petitioner tenure did not receive the affirmative votes of a majority of respondent board members. Thus, petitioner did not acquire tenure and the superintendent properly notified her that her services were terminated effective September 1, 1999, the end of her probationary term. Petitioner contends that a majority of the board members must vote against granting tenure in order to terminate a probationary employee. The statute does not contain such a requirement, and petitioner has proposed no sound basis for imposing it. Because I find that petitioner was terminated properly, I need not consider her claim that she acquired tenure by estoppel. In sum, petitioner has failed to demonstrate that respondent’s determination was arbitrary, capricious or contrary to law.

Moreover, the alleged procedural infirmities in respondent’s vote do not provide a basis for reversing the determination. Education Law "3031(b) provides that when a board of education votes to reject a superintendent’s recommendation to grant tenure, the vote shall be considered advisory. The statute further provides that the board shall notify the teacher of its intent to deny tenure at least 30 days before meeting for final consideration. If the teacher makes a written request for the board’s reasons, the board must respond within seven days (Education Law "3031[b]).

Respondent’s first vote occurred on June 23, 1999. By letter dated June 25, the superintendent advised petitioner that the board would take final action on July 22, 1999. Thus, respondent did not provide the full 30 days’ notice required by "3031. Respondent also failed to respond to petitioner's June 28, 1999 request for a written statement of reasons until July 8, 1999, more than seven days later.

Petitioner, however, did receive the written statement of reasons and had sufficient time to present a lengthy written response to respondent before its vote. In these circumstances, respondent’s failure to adhere to the statutory requirements constitutes harmless error (Cf.Appeal of Gold, 34 Ed Dept Rep 372, Decision No. 13,347). In any event, reinstatement is not the proper remedy for a violation of "3031 (id.).

I have reviewed petitioner’s remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE