* Subsequent History: Matter of Scott v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; January 20, 2006. *

Appeal of WILLIAM SCOTT from action of the Board of Education of the City School District of the City of Utica regarding tenure.

Decision No. 15,192

(March 29, 2005)

David B. Savlov, Esq., attorney for petitioner

Donald R. Gerace, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the City School District of the City of Utica (“respondent”) to deny tenure and dismiss him, effective September 3, 2004, from the administrative position of Director of Staff Development, Planning and Technology.  The appeal must be dismissed.

Prior to April 1998, petitioner was a tenured teacher in the City School District of the City of Syracuse (“Syracuse”).  In February 1998, respondent posted and advertised a teaching position entitled “Staff Development Trainer/Facilitator (Teacher on Special Assignment – Full-time Position).”  Respondent appointed petitioner to that position on March 24, 1998, and he began work on or about April 1, 1998.  Respondent and Syracuse arranged for petitioner to remain on the Syracuse payroll, with respondent reimbursing Syracuse.

On August 18, 1998, respondent continued petitioner’s appointment to the position of Staff Development Trainer/Facilitator, as an employee of respondent’s district, at an annual salary of $59,000.  Petitioner continued to be employed in that position through a series of one-year appointments and extensions through July 2001.

On July 24, 2001, respondent voted to establish the position of Director of Staff Development, Planning and Technology, effective September 1, 2001.  Unlike the position petitioner then held, which required teaching certification, this new position required certification as a school district administrator, and was subject to the collective bargaining agreement between the district and the Utica Administrators Association.  Petitioner applied for this new position and was appointed by respondent on August 28, 2001, effective September 4, 2001, at a salary of $79,153 per year.

Petitioner continued to serve in the Director position until spring 2004, when the superintendent recommended him for tenure.  At its meeting on April 27, 2004, respondent voted 5-2 to deny tenure.  By letter dated April 30, 2004, respondent’s clerk advised petitioner of the negative action, and further advised that a final vote would be taken on June 22, 2004.

On May 7, 2004, petitioner wrote to the clerk and requested that he be given in writing the reasons for denial of his tenure.  Respondent met on May 11, 2004, in executive session to discuss a response to petitioner’s request.  By letter dated May 13, 2004, respondent’s clerk enumerated six reasons for the denial of tenure.  Thereafter, petitioner sent a letter dated May 17, 2004, to the clerk responding in detail to the reasons that had been provided.

After several months of discussion and negotiation, on August 24, 2004, respondent voted again by a 5-2 margin to deny tenure.  That determination was sent to petitioner by the clerk in a letter dated August 26, 2004, which also advised him that his final date of employment would be September 3, 2004.  It appears that petitioner was paid through September 24, 2004.

Petitioner claims that his dismissal was wrongful in several respects.  He argues that from 1998 to 2004 he served in the same basic job description and performed the same or similar duties, both before and after respondent’s actions of July 24 and August 28, 2001, and that he could not be denied tenure, which he had acquired by estoppel.  He claims further that respondent did not comply with Education Law §3031(b) because the reasons he was given for denial of tenure were not the “board’s reasons,” in that they were not properly formulated, or were vague, ambiguous, and inadequate, and were communicated to him by the clerk rather than by respondent itself.  He alleges that his termination was in violation of his constitutional right of free speech, and was also in violation of the collective bargaining agreement between the district and the Utica Administrator’s Association.  Petitioner asks that I annul respondent’s August 24, 2004, action and order that he be reinstated to his position from September 3, 2004, with full pay and benefits as a tenured employee.

Respondent denies that it acted contrary to law, and asks that the petition be dismissed in its entirety.

I cannot accept petitioner’s argument that he acquired tenure by estoppel because he performed the same or similar job duties during his entire time with the district.  The vacancy announcement for the original job he held, Staff Development Trainer/Facilitator at Proctor High School, required experience in school-based staff development and the ability to train staff in block scheduling, cooperative learning, diversity, technology, behavior management and learning styles.  The position required a teaching certificate, and was a school-year position which also included 25 days of work in the summer.  The position reported to the principal of Proctor High School, paid $59,000 per year, and was subject to the collective bargaining agreement with the Utica Teacher’s Association.

The position created in 2001, Director of Staff Development, Planning and Technology, was substantially different.   The position encompassed substantial supervisory responsibilities and a district-wide role: 

Encompasses the overall district leadership in the on-going process of district-wide and site planning, staff development, and implementation and evaluation of the District Technology Plan, and development, implementation and evaluation of the District Professional Development Plan (PDP) and the Comprehensive District Education Plan (CDEP).  Performs any other duties assigned by the Superintendent. 

The new position required certification as a school district administrator, was a twelve-month position, and reported directly to the superintendent.  Petitioner was hired at a salary of $79,153, more than $18,000 per year above his salary of $61,000 in his previous position and was subject to the collective bargaining agreement with the Utica Administrator’s Association.

While there was a considerable carryover of duties, it is clear that petitioner was appointed to a newly-created position on August 28, 2001, and that both employer and employee were well aware of that fact.  It is true that the Board’s action was characterized as a “change of assignment,” and that there is no specific mention of a probationary appointment beginning September 4, 2001.  However, on the record before me, petitioner’s claim that he essentially did the same job the entire time he was employed by the district exalts form over substance.  Based upon the affidavit of the district’s Director of Personnel and the extensive documentation attached thereto, I find that petitioner did not acquire tenure by estoppel, but that he entered upon a new administrative position as a probationary appointee effective September 4, 2001.

Generally, a board of education has the unfettered right to terminate a probationary employee’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 Jackolski, 43 Ed Dept Rep 418, Decision No. 15,038).  Here petitioner claims that respondent violated Education Law §3031(b) because the reasons for the board’s action stated in the clerk’s letter of May 13, 2004, are legally insufficient.  Education Law §3031(b) provides that when a candidate for tenure has been rejected by a board of education, the candidate may “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.”

In this case, after petitioner’s May 7, 2004 request, respondent met on May 11, 2004, to discuss a response.  Prior to the meeting, on May 10, the then-president of respondent sent an e-mail to the superintendent, clerk, and board members outlining five reasons why tenure should be denied.  Several affidavits give conflicting versions of the discussion at the ensuring May 11 meeting.  It appears that at least some of the other board members who had earlier voted to deny tenure presented additional reasons.  It does not appear that any formal vote was taken during this meeting.  However, the then-president, counsel, and current president of respondent indicate that a “head count” was taken by the then-president, and that a majority of board members was in agreement at least as to the reasons stated in his e-mail.  The then-president thereafter directed the clerk to respond to petitioner’s demand, apparently directing that all reasons brought forth in the meeting be included in such letter.

The clerk’s letter of May 13 stated six reasons for the denial of tenure, is similar in many respects to the e-mail sent by the then-board president, and, according to affidavits in the record, does not present all of the board’s reasons for denying tenure.  Based upon these conflicting affidavits, petitioner claims that he is entitled to tenure.

Where a superintendent has failed to provide reasons for a negative recommendation pursuant to Education Law §3031(a), the proper remedy is not to grant tenure, but to direct the formulation of appropriate specific reasons, and to give the aggrieved petitioner the opportunity to respond (Appeal of Ruff, 33 Ed Dept Rep 648, Decision No. 13,181).  Similarly, where reasons given pursuant to §3031(a) were deemed insufficiently specific, the proper remedy is also to require new reasons, but not to reinstate petitioner (Matter of Rathbone v. Bd. of Educ., 47 AD2d 172; aff’d, 41 NY2d 825).  Neither party has cited any case where the reasons supplied pursuant to §3031(b) are allegedly incomplete.  It would seem that where, as here, not all reasons discussed by the board were included in its response to petitioner, respondent must be limited to the reasons actually given, and precluded from now attempting to add additional reasons.  For that reason, I will limit my analysis to the reasons given in the clerk’s letter of May 13, 2004.  Although disputed by the superintendent’s affidavit, I conclude that the reasons given in the letter were supported by a majority of board members, and are the “board’s reasons” for denying tenure.

The first five reasons given in the May 13, 2004, letter pertain to petitioner’s failure to articulate certain district policies at a public meeting, failure to submit certain language to the Utica Teachers Association with regard to its contract, failure to respond to telephone calls by the Utica Teachers Association president, acting in an unprofessional manner at board meetings, and failure to provide certain information after requests were made by the board of education.  These are essentially the reasons given by the then-board president in his May 10 e-mail.  The sixth reason charges petitioner’s failure to supervise his secretarial staff properly.

In response, on May 17, 2004, petitioner submitted a four-page, single-spaced response, ably addressing the reasons given.  In only one response did petitioner indicate any uncertainty as to the reason given, and there is no indication in the record that petitioner ever sought clarification of the reasons given to him prior to the due date of his response.  In Matter of Rathbone, supra, the Appellate Division said that §3031 requires only that “the district superintendent would advise the teacher of the reasons for his recommendation so that in turn the teacher might be able to make a reasonable and logical reply” (47 AD2d at p. 175).  The court further stated:  “While the reasons ascribed for petitioner’s termination could have been more explicit, it clearly expressed dissatisfaction . . . this being so, the board had the absolute right to end her employment regardless of specifics” (concurring opinion at p.177).  The specificity of a bill of particulars is not required (Matter of Stevens, 13 Ed Dept Rep 64, Decision No. 8,712).  The same standard applies under both §3031(a) and (b) (Appeal of Dituri and Blake, 42 Ed Dept Rep 363, Decision No. 14,882).  Based on this standard, I am satisfied that the reasons given in the clerk’s letter of May 13, 2004, are sufficiently specific.

It would have been better practice had respondent formally voted upon the exact reasons for its intended action, but I find that the reasons ultimately posed were supported by a majority of board members.  The fact that the reasons were transmitted by the clerk rather than by some member of the board is of no consequence, especially since it appears that this respondent routinely directed the clerk to make responses on its behalf.

Petitioner further claims that his determination was in violation of his constitutional right of free speech, apparently based on one of the reasons given in the clerk’s letter objecting to his “non-professional and non-business-like manner when addressing the Board of Education publicly at meetings.”  In support of his claim, petitioner cites a single occasion when he addressed the board as a member of the public, rather than in his administrative capacity, on March 18, 2003.  The board minutes for that meeting indicate that petitioner addressed the board because he “felt compelled to address Board Members and pledged that he would fight the battle of the students of the District to defeat those forces that were using the problems of the District for political gains.”  However, affidavits submitted by several board members indicate their dissatisfaction with petitioner’s ability to articulate policy and explain various district actions at board meetings in his administrative capacity.  There is no mention anywhere in respondent’s papers regarding the incident to which petitioner refers.  Petitioner fails to establish that respondent terminated him for a constitutionally impermissible purpose.  Petitioner has the burden of proof to make an “evidentiary showing” of a statutory violation or a constitutionally impermissible purpose, not mere accusations or speculation (Matter of Sachs, 71 AD2d 898, aff’d 50 NY2d 830; Appeal of Mahoney, 43 Ed Dept Rep 483, Decision No. 15,060).  I find that petitioner has failed to make the required showing of proof as to this claim.

Finally, I have examined the collective bargaining agreement between the Utica Administrators Association and the district covering the relevant period, and I do not find that there has been any violation.  Further, I note that petitioner has not filed a grievance with respect to such contract.

Based upon the record before me, I cannot find that respondent’s action in denying tenure to petitioner was arbitrary or capricious, in violation of lawful procedure, or for a constitutionally impermissible purpose.

THE APPEAL IS DISMISSED.

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