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Decision No. 14,878

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.

 

(May 30, 2003)

 

David Dretzin, Esq., attorney for petitioner 

Michael A. Cardozo, 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.--In 1999 petitioner appealed a determination of the Board of Education of the City School District of the City of New York ("board") which upheld the determination of former New York City Schools Chancellor Rudolph F. Crew ("Chancellor") removing petitioner from his position as superintendent of Community School District 19.

On November 22, 2000, I issued a decision sustaining the appeal (Appeal of Riccobono, 40 Ed Dept Rep 300, Decision No. 14,485).  The facts relevant to this proceeding are recited in detail in that decision and will not be repeated here.

In March 2001, the board challenged my decision by commencing an Article 78 proceeding in Supreme Court.  By  Decision/Order dated September 22, 2001, the board"s application to vacate my decision was denied, and the Article 78 proceeding was dismissed (Matter of the Application of the Board of Education of the City School District of the City of New York and Chancellor Harold O. Levy v. Richard Mills, as Commissioner of Education of the State of New York, and Robert E. Riccobono, Supreme Court, Albany County, Special Term; Connor, J.; September 22, 2001; n.o.r.).

The board and Chancellor appealed to the Appellate Division, Third Department.  On December 26, 2002, the Appellate Division issued an order in which it stated that Supreme Court had properly denied petitioners" request to annul my determination "insofar as it pertained to the propriety of Riccobono"s removal under Education Law "2590-l."  The order also stated, however, that Supreme Court should have remitted this matter to me "for the express purpose of considering and addressing the remaining statutory provisions relied upon by petitioners," namely Education Law "2590-h(30-a), which incorporates by reference Education Law "2590-f(2).  The Court then remitted the matter to Supreme Court for further proceedings.

On January 21, 2003, Justice Connor remitted the matter to me for further consideration in accordance with the Appellate Division order.

Upon receipt of the Supreme Court order, my Office of Counsel contacted the parties and requested memoranda of law on the following issue:

Aside from any reliance on Education Law "2590-l, was the Chancellor"s dismissal of Community Superintendent Riccobono legal, based upon Education Law "2590-h(30-a) (as it existed at that time,  prior to its repeal  by   L. 2002, c.91, "30), which incorporated by reference Education Law "2590-f(2)?

The parties submitted additional memoranda of law.  They agree that petitioner Riccobono had a valid employment contract for the period July 1, 1999, through June 30, 2000, when Chancellor Crew summarily removed him by letter dated July 15, 1999.  Significantly, respondents concede that petitioner"s contract created a protected property interest under state law.

Prior to the extensive changes to the governance system of the City School District of the City of New York (L. 1996, c.720), only a community school board had the power to remove for cause a community superintendent it had employed under contract, a power which it continued to have after the 1996 amendments (Education Law "2590-e[1]), although "2590-e(1) was later repealed by L. 2002, c.91, "27.  Prior to the 1996 amendments, however, the Chancellor had the authority under Education Law "2590-l to suspend or remove only a community school board or board member, not a community superintendent.  The 1996 amendments changed "2590-l to allow the Chancellor, for the first time, to initiate removal of a community superintendent, providing that the Chancellor "may, in addition to or as an alternative to any other remedies authorized by this article . . ." proceed to issue an order and enforce it by the means set out therein (emphasis added).  Education Law "2590-l is procedural, and I have already determined that the Chancellor did not comply with it, and directed that petitioner be restored to his status as a paid employee of the district (see, Appeal of Riccobono, supra).

At the same time this procedural amendment was made to "2590-l, two other relevant amendments, upon which respondents rely, were made.  Education Law "2590-h was amended to add a new subdivision 30-a, giving the Chancellor the power and duty to:

Remove a community superintendent who fails to comply with the provisions of subdivision two of section twenty-five hundred ninety-f of this article.

(This subdivision has since been repealed by further amendments to the New York City school governance structure [L. 2002, c.91, "30].)  Education Law "2590-f(2) provided:

In exercising such powers and duties each community superintendent shall comply with all applicable provisions of law, by-laws, rules or regulations, directives or agreements of the city board, the chancellor and his or her community board and with the educational policies established by the city board and his or her community board, including performance standards addressed to administration and educational effectiveness, and any requirements for continuing training and education, embodied in standards, circulars or regulations promulgated by the chancellor.

(This subdivision has since been amended by L. 2002, c.91, "10.) 

Respondents contend that any violation or failure of a community superintendent to comply with "2590-f(2) is grounds for immediate removal pursuant to "2590-h(30-a).  In their brief, respondents argue that the "only prerequisite found in "2590-h(30)(a) [sic] is a conclusion by the Chancellor that a superintendent failed to comply" with some aspect of "2590-f(2) (emphasis added).  They argue further:

In failing to properly evaluate and supervise principals or develop an adequate professional development plan, Appellant failed to comply with N.Y. Educ. Law "2590-f(1).  Neither Education Law "2590-h(30) [sic], nor "2590-f(2) imposes a requirement that notice of charges be provided or a hearing held.  Nor do these sections require the Chancellor to issue a written order that the Superintendent take required action or cease improper conduct.

I cannot agree with this line of reasoning, because it ignores a long line of jurisprudence that establishes procedural rights and safeguards when a protected property right is at stake.

     In Matter of Hartwell, 41 State Dept Rep 302, Decision No. 1809, Commissioner Graves considered a situation in which the board of education of the City School District of the City of Buffalo attempted to reduce the salary of its superintendent by 20 percent.  Commissioner Graves found that the board of education had the power to enter into an employment contract with its superintendent, and that it did so.  He further found:

Therefore, the statute [citing former Education Law "869] intends to bring about a benefit, both to the city school district and to the occupant of this highly important position, by assuring to both that during a period of six years there will be no change without the consent of both parties.  The effect of this arrangement is that the board on the one hand offers employment to a person qualified to become superintendent for a six-year term at a specified salary per annum.  When this offer is accepted it becomes a contract binding on both parties so that the superintendent may not leave the position without the consent of the board and the board may not dismiss the superintendent except for "cause" nor may his salary be reduced during the term.  If after employing the superintendent the board of education could reduce his salary the provision of the statute, that the superintendent shall hold his position for a period of six years, would amount to nothing.

In Matter of Smith (1 Ed Dept Rep 536, Decision No. 6797), Commissioner Allen considered a somewhat different situation where a superintendent of schools had been appointed by the City School District of the City of Peekskill to a statutory term of five years as authorized by Education Law "2507(1).  Although no contract was involved, the Commissioner found that under a term appointment, the superintendent acquired a limited type of tenure of office in the same manner that teaching and supervisory personnel acquire tenure.  The Commissioner went on to say:

I conclude, therefore, that the provisions of section 2509 are applicable to the limited type of tenure which may be accorded to a superintendent of schools, as indicated, and that, therefore, a superintendent may not be dismissed during a five-year appointment except after hearing by an affirmative vote of a majority of the board, on the basis of charges served on the superintendent and full opportunity to defend, including examination and cross-examination of witnesses and the full  procedure outlined in subdivision 3 of said section 2509.

In the absence of compliance on the part of respondent Board of Education with such procedural requirements, the Board of Education may not dismiss the Superintendent.

In 1972, the United States Supreme Court rendered its landmark decisions in Board of Regents v. Roth (408 U.S. 564) and Perry v. Sindermann (408 U.S. 593), which recognized certain constitutional rights of public employees.  In 1973, these principles were applied by the Appellate Division, Second Department, in Matter of Gray v. Board of Education, UFSD No. 1 (41 AD2d 739).  In Gray, a school principal was suspended by an acting superintendent of schools, but the suspension notice stated that termination of his employment would be recommended to the board of education without provision for notifying him of the charges, or affording him a hearing.  The Second Department found that constituted a denial of due process, and that the school principal"s employment was in fact terminated without any procedural safeguards.  When the matter came before the Second Department for the second time (42 AD2d 742), the Board had given petitioner notice of a hearing, but petitioner sought to enjoin the hearing and have the court direct that it be conducted by a panel of "hearing officers."  The Court said that the statute did not provide for such a procedure, and that the board of education could itself conduct the hearing, provided that petitioner could seek further judicial review, if necessary, after the hearing was held.

     Following these court cases, a series of appeals, all involving the contractual and procedural rights of superintendents and administrators, came before the Commissioner of Education.  In Matter of Driscoll (14 Ed Dept Rep 148, Decision No. 8910), a superintendent employed pursuant to contract was terminated by vote of the board of education.  It appears that the superintendent and board met several times informally to discuss their differences, and attempts were made to obtain the superintendent"s resignation, without success.  Thereafter the board appointed two of its members to investigate certain matters, which was followed by dismissal.  As Acting Commissioner Ambach stated:

Upon review of the record before me, I find no evidence that petitioner was informed of specific charges against him or that he was given an opportunity to respond to specific charges.  Respondent board merely investigated the matter by questioning petitioner and others, and when the board felt that it had sufficient information, it voted to terminate petitioner"s services.  This procedure clearly did not afford petitioner even minimal due process of law.

In Matter of Gainey (14 Ed Dept Rep 174, Decision No. 8924), a superintendent was suspended with pay, but had not yet been terminated.  Commissioner Nyquist recognized that prior to the decisions in Roth and Sindermann, Commissioner"s decisions relating to dismissal of superintendents were based on Education Law "3020.  However, citing Roth, Sindermann, and Gray, he recognized that procedural rights had been necessarily changed, since a contract gives rise to a legally founded expectation of continued employment, and hence creates a property right within the scope of those decisions.  In Matter of Spring (14 Ed Dept Rep 319, Decision No. 8994), a superintendent was relieved of his duties and replaced by an acting superintendent.  When the board refused to bring charges, petitioner appealed and was granted a stay.  Commissioner Nyquist found that the board"s action in relieving petitioner of his duties and assignment, without bringing charges or proceeding to a hearing, was null and void.  Again, in Matter of DeFreitas (14 Ed Dept Rep 329, Decision No. 8,998), an interim community superintendent was employed pursuant to contract by Community School District 5, which voted to terminate his employment without charges or a hearing.  Even though Commissioner Nyquist found that petitioner had a contract of employment for an indefinite period, the contract gave him an expectation of continued employment until a new superintendent was hired, and could be terminated only in accordance with the fundamental principles of due process of law, citing Roth, Perry, and Gray.  Commissioner Nyquist wrote:

Due process in these circumstances involves the right to written charges; the right to respond in writing to such charges and to be represented by an attorney; the right to a formal hearing, with the right to produce evidence and cross-examine witnesses who testify in support of the charges; the right to obtain a transcript of such hearing; and the right to formal written findings sustaining or dismissing the charges.

     More recently, in Appeal of Pinckney (36 Ed Dept Rep 461, Decision No. 13,601), I considered the rights of a superintendent under an employment contract.  In Pinckney, the superintendent had not been terminated, but had been suspended without pay when the appeal was commenced.  I found that the board"s action violated the petitioner"s rights and directed that he be paid his salary until the completion of the due process hearing and the issuance of a determination rendered pursuant to it.

     Although my focus was on the petitioner"s right to be paid during his suspension, the analysis in Pinckney also applies to other vested property rights, including the right to a pre-termination hearing:

There is no question that petitioner possesses a property right in his continued employment by virtue of his employment contract with respondent, of which he may not be deprived without due process (Board of Regents of State Colleges, et al. v. Roth, 408 US 564 [1972]; Stein v. City of New York, 792 F2d 13 [2nd Cir. 1986], certden 479 US 984). One who has a property interest in continued employment also possesses a property interest in his employment benefits, including his salary (McCreery v. Babylon Union Free School District, 827 F. Supp. 136 [1993]; see, Watkins v. McConologue, 820 F. Supp. 70 [1992]). Before a person may be deprived of a protected property interest, the person is entitled to due process protections under the Fourteenth Amendment (Board of Regents v. Roth, supra). In Cleveland Board of Education v. Loudermill, 470 U.S. 532, (1985), the United States Supreme Court held that, to terminate a protected property interest, the government is required to provide notice and a pre-termination opportunity to respond. The Loudermill court went on to state that where the "employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay" until the due process requirement is satisfied. (emphasis supplied). Thus, it follows that, where an employee has a protected property interest in his or her compensation, it may not be discontinued without due process (see, McCreery v. Babylon Union Free School District, supra; Watkins v. McConologue, supra).

This decision in Pinckney fairly states the procedural requirements for terminating a protected property interest embodied in a superintendent"s contract for cause as of April 24, 1996, when it was issued.  I note that the bill which ultimately became L. 1996, c.720, restructuring the school governance system in the City School District of the City of New York, was introduced into both the Assembly and the Senate on December 17, 1996.  It may be inferred that the Legislature was aware of these constitutional requirements prior to the adoption of the bill, which was approved by the Governor on December 31, 1996.

I agree with respondents" statement that the "1996 amendments . . . were designed to enhance the Chancellor"s authority, strengthen leadership and accountability and promote academic excellence in all districts."  I further agree that the amendments to Education Law "2590-l were intended to provide the Chancellor with an additional or alternative method of initiating disciplinary proceedings against a community superintendent, provided the Chancellor complied with the procedural requirements.  I find nothing, however, that would convince me that the amendments to Education Law Article 52-A made in 1996 were intended to override or abolish the procedural rights established by the United States Supreme Court and other courts with respect to protected property interests.  I therefore conclude that petitioner"s dismissal without minimum procedural due process was not legal.

I must comment on respondents" argument that Education Law ""2590-h(30-a) and 2590-f(2) do not specifically require notice or a hearing, and that a simple "conclusion" by the Chancellor that a community superintendent failed to comply with some aspect of "2590-f(2) is all that is required.  As an example, Penal Law "120.15, entitled "Menacing in the Third Degree," provides as follows:

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.

Menacing in the third degree is a class B misdemeanor.

This particular section of the Penal Law describes a relatively simple crime, yet depends on a number of factual issues.  The statute itself does not require charges, a hearing, or any other procedure.  However, one would not argue that a policeman could merely conclude that a defendant was guilty, and place him in jail for up to three months without any further delay (Penal Law "70.15[2]).  The menacing statute does not exist in a vacuum:  the United States Constitution, the New York State Constitution, and the Criminal Procedure Law all require due process before punishment.  Similarly, Education Law ""2590-h(30-a) and 2590-f(2) did not exist in a vacuum.  Respondents were required to afford petitioner with procedural due process according to standards developed over many years.  If a mere conclusion were sufficient, the board of education in Matter of Driscoll, supra, could simply have fired the superintendent as it attempted to do.

Questions are raised in the parties" memoranda of law as to whether the Chancellor"s powers with respect to Education Law "2590-f(2) are substantially more limited than those of a community board under "2590-e; whether the Chancellor may proceed under "2590-f(2) in the absence of city-wide performance standards for community superintendents; whether the stated grounds for removal here were encompassed by "2590-f(2); and whether "2590-l, as amended, is inconsistent with the requirement of a pre-termination hearing.  These questions may become relevant if respondents elect to pursue this matter. 

THE APPEAL IS SUSTAINED. 

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], as amended by L. 2002, c.91), 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).

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