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Decision No. 14,882

Appeal of JOAN DITURI and SHANGO BLAKE from action of the Board of Education of the City School District of the City of Yonkers and Joe L. Farmer, Superintendent, regarding denial of tenure.

 

Decision No. 14,882

 

(May 30, 2003)

 

Bruce K. Bryant, Esq., attorney for petitioner Dituri 

Barbara A. Jaccoma, Esq., attorney for petitioner Blake  

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Lawrence W. Thomas and James P. Drohan, Esqs., of counsel

 

MILLS, Commissioner.--Petitioners appeal the July 24, 2002 vote by the Board of Education of the City School District of the City of Yonkers ("respondent board") to deny them tenure.  The appeal must be sustained in part. 

On or about July 31, 1999, respondent board appointed petitioner Blake to serve a three-year probationary term as assistant principal.  On or about August 1, 1999, respondent board appointed petitioner Dituri to serve a three-year probationary term as principal.  The superintendent recommended that petitioners and 11 other administrators be granted tenure at the end of their probationary terms.  At respondent board"s June 19, 2002 meeting, it voted to reject the superintendent"s recommendation as to all 13 probationary administrators.  By letters dated June 25, 2002, each petitioner wrote to respondent board requesting a written statement explaining the reasons for its action.  By letters dated June 28, 2002, respondent board informed petitioners that its advisory vote was based on its view that each of them had failed to function effectively in the schools to which they had been assigned.

By letters dated July 15, 2002, each petitioner replied to the June 28 letters.  Each objected, alleging that "the letter[s] lacked the required specificity and, therefore, precluded specific responses."  Both petitioners provided information about their performance evaluations and the improvements they had made to their schools and stated that in doing so they were not waiving their objections to "the inadequacy of [the board"s] "letter[s] of reason.""

By letters dated July 25, 2002, respondent board advised petitioners that it had voted on July 24, 2002 to terminate their services effective August 24, 2002.  This appeal ensued.

Although petitioners name the superintendent as a respondent, they raise no claims against him.  Petitioners contend that respondent board lacked the legal authority to reverse the superintendent"s recommendation to grant them tenure.  They also allege that one vote was improperly cast and that, discounting that vote, a majority of the board did not vote to deny them tenure.  Petitioners claim that respondent board"s June 28, 2002 statements of reasons were not sufficient.  Accordingly, they seek to have respondent board"s vote denying them tenure set aside and to be be returned to their positions with back pay and benefits. 

Respondent board asserts that it was legally authorized to reject the superintendent"s recommendation to grant petitioners tenure.  It contends that members" votes were cast properly and that petitioners did not receive the required number of favorable votes to be granted tenure.  Finally, it alleges that the written reasons it provided to petitioners following the June 19, 2002 vote complied fully with its legal obligations.

Petitioners argue that Education Law "2573(5) authorized the superintendent to grant them tenure and that respondent board exceeded its powers when it voted to reject the superintendent"s recommendation to grant petitioners tenure.  Section 2573(5) provides, in pertinent part:

At the expiration of the probationary term of any persons appointed for such term, the superintendent of schools shall make a written report to the board of education recommending for permanent appointment those persons who have been found competent, efficient and satisfactory.  Such persons...shall hold their respective positions during good behavior and efficient and competent service...

Petitioners contend that "2573(5) provides no role for a school board in the process of granting or denying tenure at the end of an employee"s probationary term.  They assert that once an employee has satisfactorily completed his or her probationary term, and the superintendent has recommended that employee for tenure, the board is powerless to reject that recommendation. 

Petitioners" argument fails to give effect to Education Law "3031(b), which provides, in pertinent part:

Where a board of education...votes to reject the recommendation of a superintendent of schools...to grant tenure to any teacher, administrator and supervisor employed on probation, such vote shall be considered advisory and at least thirty days prior to the board meeting at which such recommendation is to be finally considered, the board shall notify said teacher, administrator and supervisor of its intention to deny tenure and the date of the board meeting at which it will take final action.(emphasis added)

     In Anderson v. Bd. of Educ. of the City of Yonkers (46 AD2d 360, 363, aff"d. 38 NY2d 897) the court applied Education Law "3031 to the Yonkers city school district and stated that the enactment of "3031 did not alter the well established doctrine that "...a board of education could, in the face of a positive recommendation by its superintendent of schools, deny tenure to a probationary [employee]...".  Accordingly, petitioners" argument that Education Law "2573(5) alone governs the granting or denial of tenure at the end of an employee"s probationary period is without merit.

Petitioners next assert that respondent board"s denial of tenure should be set aside because it did not receive valid votes by a majority of the trustees.  Specifically, they claim that one of respondent board"s trustees is philosophically opposed to tenure, that he has consistently voted against granting tenure to any teachers or administrators, and that he voted against granting tenure in the instant case based on his philosophical views rather than on petitioners" merits.  They claim that voting in this manner represents an abrogation of the trustee"s legal obligation to evaluate each candidate for tenure on his or her merits and that his vote must therefore be set aside.  Petitioners conclude that if the trustee"s vote is set aside, then the vote for accepting the superintendent"s recommendation to grant tenure would be three in favor and three against and that, accordingly, a majority of the trustees never voted to deny tenure.  Petitioner"s argument is irrelevant because, under its own policy, respondent board could only grant tenure by an affirmative vote of a majority of its members. Excluding one negative vote would not, therefore, alter the result.

Petitioners" final allegation is that respondent board"s written explanation of the reasons it intended to deny them tenure was insufficient to meet the statutory obligations of "3031(b).  Specifically, in its letter to Ms. Dituri dated June 28, 2002, respondent board wrote:  "In response to your letter dated June 25, 2002, please be advised that the Board of Education voted to deny you tenure as a school principal because of concerns that you have failed to function effectively as a principal in the school to which you have been assigned."  Similarly, by letter dated June 28, 2002, respondent board wrote to petitioner Blake as follows: "In response to your letter dated June 25, 2002, please be advised that the Board of Education voted to deny you tenure as an administrator based upon its perception that you have failed to function effectively in the school in which you have been assigned."  No further explanations were provided.

Education Law "3031(b) provides in pertinent part:

"...Such teacher, administrator and supervisor may, not later than twenty-one days prior to such meeting, request in writing that he be furnished with a written statement giving the board"s reasons for such intended action and within seven days thereafter such written statement should be furnished. Such teacher, administrator and supervisor may file a written response to such statement with the district clerk not later than seven days prior to the date of the board meeting."

When a probationary employee requests a statement of reasons why he or she is not being granted tenure, the reasons supplied must be sufficiently specific to afford the employee an opportunity to make an intelligent and meaningful response to the stated reasons (see, Matter of Farrell v. Bd. of Educ. of Carmel CSD No. 2, 64 AD2d 703; Matter of Rathbone v. Bd. of Educ. of Hamilton CSD, 47 AD2d 172; Appeal of Ruff, 33 Ed Dept Rep 648, Decision No. 13,181; Matter of Gray, 14 id. 370, Decision No. 9,022).  Respondent board"s argument that Education Law "3031 does not require a board of education to provide a statement of reasons that are as specific as the statements superintendents are required to provide is not supported by the statute.  The requirement that an employee be furnished with the reasons he or she is not being granted tenure is the same in both Education Law "3031(a)(procedures to be followed when a superintendent has recommended against granting tenure) and "3031(b)(procedures to be followed when a board of education votes to reject the recommendation of a superintendent to grant tenure). 

Based upon my review of the record, I find that the statements of reasons provided to petitioners were insufficient to allow them to prepare meaningful responses (Appeal of Ruff, supra; Matter of Gray, supra; Matter of Farrell, supra; Matter of Rathbone, supra).

     Because petitioners" services were terminated at the end of their probationary periods, back pay is not available to them (Appeal of Ruff, supra).  Rather, the relief granted must remedy the actual harm petitioners have suffered (Appeal of Gold, 34 Ed Dept Rep 372; Decision No. 13,347).  Here, respondent board"s failure to comply with "3031 injured petitioners by depriving them of an opportunity to make intelligent and meaningful responses to the stated reasons.  Accordingly, the matter shall be remitted to respondent board with the following direction:

     1. Respondent board shall resubmit to each petitioner a statement of reasons for its decision to deny tenure. Such statements shall be sufficiently specific to afford petitioners an opportunity to make intelligent and meaningful responses to the stated reasons.

     2. Respondent board is directed to inform petitioners of the date of the board meeting at which it will reconsider its July 24, 2002 vote to terminate petitioners, such board meeting to be no later than 60 days from the date of this decision.

     3. Each petitioner shall be allowed to submit a response to such statements not later than seven days prior to the date of the board meeting.  Respondent board shall consider any such responses submitted by petitioners and shall, at its board meeting, affirm or alter its July 24, 2002 vote to terminate petitioners.

     4. Any responses supplied by petitioners will be included in any employment records maintained by respondent board relating to their employment as probationary administrators.

     Petitioners" remaining requests for relief are denied and the petition is otherwise dismissed. 

     THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED. 

     IT IS ORDERED that the parties proceed expeditiously in accordance with this decision .

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