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Decision No. 15,038

Appeal of THOMAS JACKOLSKI from action of the Board of Cooperative Educational Services of Nassau County regarding termination of employment.

 

 

(March 30, 2004)

 

Reno & Artura, attorneys for petitioner, John A. Reno, Esq., of counsel 

Ingerman Smith, L.L.P., attorneys for respondent, Anna M. Scricca, Esq., of counsel

 MILLS, Commissioner.--Petitioner appeals the decision of the Board of Cooperative Educational Services of Nassau County ("respondent") to terminate his employment.  The appeal must be dismissed.

On March 26, 2001, respondent appointed petitioner to a probationary position as a special education teacher.  On May 9, 2003, petitioner took his students on a "walking trip" in the school"s neighborhood in violation of a recently issued directive from school administration prohibiting such trips. On July 11, 2003, respondent adopted the district superintendent"s recommendation to terminate petitioner"s probationary employment because he violated the directive concerning "walking trips."  This appeal ensued.

Petitioner asserts that the termination of his employment was arbitrary and capricious, and in retaliation for reporting alleged misconduct by other employees.  He seeks reinstatement together with lost compensation.  Respondent contends that petitioner"s employment was terminated because he violated the directive concerning "walking trips," and denies that the reasons alleged by petitioner played any role in the decision to terminate his employment.

A board of education has the unfettered right to terminate a probationary teacher"s employment for any reason unless the employee establishes that he was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (James v. Bd. of Educ., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Appeal of Wynne, 40 Ed Dept Rep 521, Decision No. 14,544).  In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he seeks relief and of demonstrating a clear legal right to the relief requested (Appeal of McBeth, 43 Ed Dept Rep __, Decision No. 14,913).  Petitioner has neither alleged nor established that respondent terminated his employment for a constitutionally impermissible reason or in violation of a statutory proscription.  Petitioner alleges that respondent terminated his employment in retaliation for reporting employee misconduct, but he offers no proof to support his claims and does not assert that the alleged retaliatory actions violate a statutory proscription.  Thus, petitioner has failed to meet his burden of proof.

THE APPEAL IS DISMISSED.

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