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Decision No. 14,485

Appeal of ROBERT E. RICCOBONO from action of the Board of Education of the City School District of the City of New York, and Rudolph F. Crew, as Chancellor, regarding removal of a Community Superintendent.

Decision No. 14,485

(November 22, 2000)

David Dretzin, Esq., attorney for petitioner

Michael D. Hess, Corporation Counsel, attorney for respondents, Georgia Pestana, Esq., of counsel

New York State Council of School Superintendents, amicuscuriae, Ruberti, Girvin & Ferlazzo, P.C., Kristine Amodeo Lanchantin and Scott Michael Goodspeed, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals from a determination of the Board of Education of the City School District of the City of New York ("city board") which upheld the determination of former Chancellor Rudolph F. Crew ("Chancellor") removing petitioner from his position as Superintendent of Community School District 19. Petitioner requests that I issue an order reversing the determination and order of the city board and Chancellor, and that I direct respondents to reinstate petitioner to his position as Community Superintendent with full back pay and benefits. The appeal must be sustained.

Petitioner has been employed in the City School District of the City of New York since 1968, and became Superintendent of Community School District 19 in July 1995. Petitioner’s initial employment contract extended from July 1, 1997, to June 30, 1999. During the course of that contract, the New York State Legislature made extensive changes to the governance structure of the City School District (see, L.1996, c.720). In early 1999, petitioner entered into a new employment contract with Chancellor Crew and Community School Board 19, pursuant to Education Law "2590-e, as amended in 1996. The new contract covered the period July 1, 1999, through June 30, 2000, and contained the following language:

  1. REMOVAL

(a) The Chancellor may remove the Superintendent for any of the reasons set forth in section 2590-h and section 2590-l of the Education Law. A Superintendent who is removed by the Chancellor may appeal in accordance with section 2590-l(2) of the Education Law.

(b) The Board may remove the Superintendent only for cause, provided, however, that the Board shall obtain the approval of the Chancellor prior to preferring any charges.

(i) The Superintendent is entitled to notice of the specific charges against him and a due process hearing prior to removal. Such hearing shall be before a hearing officer selected and paid for by the Board, from a list supplied by the American Arbitration Association, the Office of Administrative Trials and Hearings or other similar independent entity. The hearing officer appointed by the Board shall issue findings of fact only. The hearing officer shall make no recommendation as to the disposition of the charge(s). The Board shall make the final determination as to the disposition of the charge(s).

(ii) The Board may suspend the Superintendent with salary during the pendency of said due process hearing.

In 1998, petitioner’s performance review indicated an overall score of 5, or outstanding, including a grade of 5 in all four areas of evaluation. In 1999, petitioner’s performance review indicated a score of 3.5, which was midway between satisfactory and superior performance.

Beginning in 1997, petitioner’s community school district became involved with a new program called "Breakthrough for Learning" which involved the New York Partnership, an alliance of business organizations in New York City that sought to improve education, housing and other services, and McKinsey & Company, a business consulting firm that worked with the Partnership. The purpose of the program was to improve student scores on standardized reading and math tests and was a program supported by Chancellor Crew. According to respondents, Community School District 19 was selected to be the first "Breakthrough District," in part, because petitioner "was not considered a stellar superintendent" and it was hoped that with guidance and assistance and additional resources petitioner’s leadership skills would improve. Subsequently, the Chancellor became increasingly concerned with the performance of Community School District 19 as the first "Breakthrough District" in the 1998-1999 school year.

By letter dated July 8, 1999, the Chancellor informed petitioner that he was removed from his position effective July 15, 1999. The letter in full reads:

As we previously discussed in person and in accordance with section 8 of your employment contract and sections 2590-h and 2590-l of the Education Law, I hereby remove you from your position as superintendent of Community School District 19 effective July 15, 1999.

It is my judgment that your continued employment as superintendent would be contrary to the best interest of the city school district. In reaching this conclusion, I considered, among other things, test scores for District 19 schools, and evaluations of your management skills and leadership capacity. Notwithstanding these conclusions, I reiterate our thanks for your long and dedicated service to the children of New York.

You have the right to appeal this removal to the City Board of Education within 15 days of the issuance of this order.

In August 1999, petitioner initiated an appeal to the city board pursuant to Education Law "2590-l(2), claiming that his dismissal was both contrary to the Education Law and violated his due process rights. On October 14, 1999, attorneys for petitioner and Chancellor Crew argued before an appeal board of the city board, and on November 3, 1999, the city board rendered a decision upholding Chancellor Crew’s action.

Petitioner and amicus, the New York State Council of School Superintendents, argue that Chancellor Crew’s action was illegal for several reasons. They argue that the Chancellor’s underlying authority to remove a community superintendent, found in Education Law "2590-h(30-a), must be based upon the superintendent’s failure to comply with the provisions of Education Law "2590-f(2), and that at the time of the Chancellor’s action, no such violation was either claimed or proven. They further argue that the Chancellor did not comply with the terms of "2590-l(1)(a), because the Chancellor did not "issue an order requiring the . . . . superintendent to cease . . . improper conduct or to take required action . . . ." They further argue that petitioner’s contract of employment with the community board and the Chancellor was a property right protected by the Fourteenth Amendment to the United States Constitution, and that petitioner was entitled to a notice of charges, specifications, and an evidentiary hearing prior to his removal.

Respondents concede that petitioner’s contract was a protected property interest. As stated in their brief:

Appellant’s contract with Community School Board 19 and the Chancellor and State law created a property interest in continued employment. However, the contract and State law specifically provide for the termination of that property interest under certain circumstances. The State which created the property right in employment may, in furtherance of legitimate interests, place limits on that right. SeeArnett v. Kennedy, 416 U.S. 134, 152, 94 S.Ct. 1633 (1974).

Respondents further argue that Chancellor Crew’s actions were in full compliance with the relevant statutes, particularly Education Law "2590-l. Although respondents argue compliance with Education Law "2590-l, the Chancellor took the position on appeal to the city board that no order was required for the Chancellor to take action under "2590-l, citing Appeal of Coca, 27 Ed Dept Rep 279, Decision No. 11,947 and Matter of Hicks, 15 id., 141, Decision No. 9,117.

The appeal must be sustained because the Chancellor clearly did not comply with the requirements of Education Law "2590-l(1)(a), since he did not issue any order requiring petitioner to cease improper conduct or take required action. I also find that, under the circumstances presented in this appeal, there is no basis for excusing the Chancellor’s non-compliance.

Prior to the adoption of L.1996, c.720, "2590-l authorized the Chancellor to issue such an order only to a community board, not to a community superintendent directly. Respondents have cited Appeal of Coca, supra, and Matter of Hicks, supra, for the proposition that such compliance is not mandatory. However, both cases involved community boards only, and presented substantially different facts from the instant appeal.

In Hicks, a community board member was suspended and appealed to the city board pursuant to Education Law "2590-g(10)(e). Commissioner Nyquist dismissed the appeal for untimeliness (15 Ed Dept Rep at 143). As a result, the statements upon which respondents rely are merely dictum. In Coca, Commissioner Sobol found extraordinary circumstances, involving such a pervasive state of mismanagement of the affairs of a community school district, that it would have served no useful purpose to order petitioners to take specific actions to properly manage the district (27 Ed Dept Rep at 282). There is nothing in the record before me that would indicate factual circumstances at all similar to those cited in Coca.

In addition, community school district board members have been held not to have property interests in the offices they hold (Warden v. Pataki, 35 F.Supp. 2nd 354, at p.362, and cases cited therein). Here, respondents concede that petitioner has a property interest in his employment contract, although they claim that it is of a limited nature. Assuming the constitutionality of the statutory scheme set forth in Education Law "2590-l, as I must for purposes of this appeal, I conclude that, at a minimum, where the community superintendent has a properly executed employment contract authorized, and, indeed, required by "2590-e, the Chancellor must first make an order directing him to cease improper conduct or take required action, and that the community superintendent must be allowed some reasonable time to comply with that order prior to his suspension or removal. To say otherwise would be to render the requirement of an order entirely superfluous, a result to be avoided. See, McKinney’s Statutes "231: "It is not to be supposed that the Legislature will deliberately place words or phrases in a statute without any purpose in view."

In view of this disposition, I will not discuss the parties’ other claims, nor will I address the question of alleged constitutional violations with respect to the manner of petitioner’s dismissal.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner be restored to his status as a paid employee of the district, at the same rate of pay he was receiving at the time of his dismissal, with back pay and benefits from the time of his dismissal, less any compensation he may have otherwise earned; subject, however, to whatever further proceedings, if any, the current Chancellor may elect to pursue, consistent with Article 52-A of the Education Law (including but not limited to ""2590-f[2] and 2590-h[30-a]), petitioner’s employment contract, and the terms of this decision and prior Commissioner’s decisions (e.g., Appeal of Pinckney, 35 Ed Dept Rep 461, Decision No. 13,601).

END OF FILE