Appeal of JONATHAN R. PATTON, BRUCE CRANE, CHERYL CRANE, HANS DEBRUYN and WILLIAM A. JOHNSON, JR., from action of the Board of Education of the City School District of the City of Rochester regarding a separation agreement.

 

                    Decision No. 14,832

 

                    (January 21, 2003)

 

Barrett Greisberger Dollinger Fletcher Peartree & Tallon, LLP, attorneys for petitioners, Richard A. Dollinger, Esq., of counsel

 

Hogan & Hartson L.L.P., attorneys for respondent, Michael Starr and Adam J. Heft, Esqs., of counsel

 

MILLS, Commissioner.--Petitioners challenge the provisions of a separation agreement ("agreement") executed between the Board of Education of the City School District of the City of Rochester ("respondent") and its former superintendent, Dr. Clifford B. Janey.  The appeal must be dismissed.

Respondent appointed Dr. Janey as superintendent effective July 1, 1995.  In August 2001, Dr. Janey and respondent signed a second employment contract, extending Dr. Janey"s employment through July 31, 2004.  Paragraph 15 of that contract, entitled "Termination," described four circumstances under which the employment contract could be terminated prior to its expiration: death of the superintendent; voluntary resignation by the superintendent; unilateral termination by respondent; or discharge for cause by respondent.  Paragraph 15(C) of the contract obligated respondent to pay Dr. Janey severance in the event respondent unilaterally terminated him.  It specified that severance would be a lump sum payment of "the salary [he] would have earned from the date of such termination to the date of expiration of his term of employment. . .at the level of [his] salary on the date of such termination, and an amount for accrued and unused vacation days as provided in Section 6(B) [of this contract]."  Paragraph 6(B) also authorized payment for up to half of Dr. Janey"s accrued and unused sick days.

Shortly after respondent and Dr. Janey signed the employment agreement, the district learned of a projected budget shortfall for the 2001-2002 fiscal year.  Additionally, in February 2002, respondent"s new president introduced a resolution to analyze Dr. Janey"s authority to make personnel appointments in accordance with Article IV of the district"s Rules and Regulations (the "Article IV appointments").  Public controversy about the budget situation, together with internal dissention within the board about Dr. Janey"s authority to make the Article IV appointments, led several board members to conclude that respondent"s duties could not be fulfilled.

On May 9, 2002, respondent voted to authorize negotiations with Dr. Janey for a mutually acceptable separation agreement.  After prolonged negotiations, respondent and Dr. Janey reached an agreement under which he would receive $260,802.60.  According to respondent, this amount is considerably less than the amount to which Dr. Janey was otherwise entitled under "15 of the employment contract.  The agreement also incorporated by reference a mutually acceptable reference letter (Attachment A to the agreement), and in "6 identified respondent"s immediate past president as the designated member of the board to respond to any inquiries about Dr. Janey from potential employers.  The agreement was executed on August 21, 2002.  This appeal ensued.

Petitioners request that I set aside the agreement as arbitrary, capricious and in violation of law, and order the repayment of any funds paid under the agreement.  They also request that "6 of the agreement be declared void because it allegedly violates board members" Constitutional right to free speech, and that the reference letter be stricken from the agreement because it is an inaccurate representation of Dr. Janey"s accomplishments.  Petitioners contend that respondent should have dismissed Dr. Janey for cause pursuant to "15(D) of the contract, alleging that he breached the contract by failing to ensure the district"s compliance with all federal, state and local laws and regulations.  Petitioners further contend that because there was cause for termination, Dr. Janey was not entitled to any future salary or benefits, and that the payment made under the agreement constitutes an illegal gift of public monies.

Respondent contends that the appeal must be dismissed because petitioners lack standing and failed to join Dr. Janey as a necessary party.  It also asserts that it properly decided not to dismiss Dr. Janey for cause, and that the agreement is not a gift of public funds.

I will first address several procedural issues.  Respondent objects to petitioners" late memorandum of law.  Although petitioners received four extensions of time, they submitted their memorandum two days beyond the final extension.  However, in light of the lack of prejudice to respondent, I will accept petitioners" memorandum.

Pursuant to Education Law "310, individuals may not maintain an appeal unless aggrieved in the sense that they have suffered personal damage or injury to their civil, personal or property rights.  Only persons who are directly affected by the action being appealed have standing; status as a resident of a school district or as a parent of a student does not, in and of itself, confer standing to challenge a board of education"s actions concerning its employees (Appeal of DeCastro, 41 Ed Dept Rep ___, Decision No. 14,730; Appeal of Allen and Wong, 40 id. 372, Decision No. 14,501; Appeal of Murphy, et al., 39 id. 562, Decision No. 14,311).  Petitioners consist of city residents and taxpayers, a parent and the Mayor of the City of Rochester.  Accordingly, petitioners lack standing to challenge the terms of the agreement or the reference letter.  Petitioners also lack standing to assert the free speech rights of board members, which they allege are abridged by "6 of the agreement (Appeal of Meyer and Mittelstaedt, Jr., 40 Ed Dept Rep 34, Decision No. 14,413; Appeal of Schuler, 37 id. 512, Decision No. 13,915).  I find that petitioners only have standing to allege that payment under the agreement constitutes an illegal gift of public monies (see, Ingram v. Boone, 91 AD2d 1063; Appeal of Gargan, 40 Ed Dept Rep 465, Decision No. 14,528).

The appeal, however, must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Roff, 41 Ed Dept Rep __, Decision No. 14,708; Appeal of Gargan, supra; Appeal of MacKay, 39 Ed Dept Rep 815, Decision No. 14,391).  Because petitioners seek to void the agreement between respondent and Dr. Janey and recover any money paid to him, Dr. Janey would clearly be affected by a ruling in petitioners" favor.  Accordingly, the failure to join him necessitates dismissal of the appeal.  Petitioners" contention that Dr. Janey is not a necessary party because respondent has represented his interests is speculative and disregards settled precedent (see, e.g., Appeal of Wheeler, 40 Ed Dept Rep 678, Decision No. 14,581). 

The appeal must also be dismissed on the merits.  In an appeal to the Commissioner, petitioners bear the burden of establishing the facts upon which they seek relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep ___, Decision No. 14,702; Appeal of L.S., 41 id. ___, Decision No. 14,683).  Petitioners have failed to meet their burden.  Petitioners correctly concede that there is no Constitutional violation when a school district pays public money to a former employee pursuant to its legal obligations (see, Ingram v. Boone, supra; Matter of Berke, 12 Ed Dept Rep 93, Decision No. 8,545).  Petitioners contend that Dr. Janey should have been terminated for cause, in which case there would have been no obligation to compensate him under his employment contract. Petitioners rely extensively on newspaper articles to support their claim that Dr. Janey"s performance justified termination for cause.  However, it is well settled that newspaper articles do not constitute proof of the facts stated therein (Appeal of Lane, et al., 41 Ed Dept Rep ___, Decision No. 14,739; Appeal of Carbone and Mastropietro, 41 id. ___, Decision No. 14,679; Appeal of DeCastro, supra).

Moreover, a board of education has broad powers pursuant to Education Law ""1709(13) and (33), and 2554 concerning the superintendence, management, and control of a school district.  In addition, a board of education has the authority to enter into an employment contract with a superintendent including provisions regarding termination (Education Law ""1711 and 2565).  In this case, respondent entered into such an agreement which contained several options for termination.  I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable law (Appeal of Devany, 41 Ed Dept Rep ___, Decision No. 14,747; Appeal of Rider, 39 id. 282, Decision No. 14,238).  On the record before me, petitioners have failed to meet that burden.  While petitioners may disagree with respondent"s decision not to dismiss Dr. Janey for cause, the affidavits of respondent board members indicate careful consideration of the issues, leading to a determination within respondent"s discretion and in accordance with Dr. Janey"s employment contract.

In light of the foregoing disposition, I need not address the parties" remaining contentions.

THE APPEAL IS DISMISSED.

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