Decision No. 15,443
Appeal of SUSAN JOHNSON from actions of the Board of Education of the Hempstead Union Free School District and Nathaniel Clay, Superintendent, regarding a personnel decision, and application for the removal of Timothy Butler, Dianne Hamilton, Ralph Schneider and Youssef Soufiane as board members.
Decision No. 15,443
(August 21, 2006)
Douglas L. Thomas, Esq., attorney for petitioner
Guercio & Guercio, attorneys for respondent Board of Education and respondents Timothy Butler, Dianne Hamilton, Ralph Schneider and Youssef Soufiane, Gary L. Steffanetta, Esq., of counsel
Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent Nathaniel Clay, Joseph E. Macy, Esq., of counsel
MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Hempstead Union Free School District (“respondent board” or “board”) to terminate her employment. Petitioner also seeks the removal of Timothy Butler, Dianne Hamilton, Ralph Schneider and Youssef Soufiane (“respondent board members”) from office. The appeal must be dismissed and the application must be denied.
Prior to October 21, 2004, Nathaniel Clay (“Clay”) served as superintendent of the Hempstead Union Free School District pursuant to a contract that was to expire on February 28, 2005. At a meeting held on October 21, 2004, the board approved a resolution terminating Clay as superintendent, effective immediately. At that same meeting, the board approved a resolution that appointed petitioner as superintendent for a period of five years, commencing October 21, 2004, and directing its president or vice president to execute a contract regarding the same.
In November 2004, Clay commenced an appeal pursuant to Education Law �310 challenging the board’s decision to terminate him as superintendent and seeking reinstatement with full pay and benefits. Clay’s request for interim relief was granted on December 3, 2004 and the board was ordered to reinstate Clay as superintendent pending an ultimate determination on his appeal. Petitioner was a named party in that appeal. 
At its meeting on December 5, 2004, the board approved a resolution reinstating Clay as superintendent. The resolution further provided “that the Employment Agreement between [the district] and Clay is reinstated in its entirety effective December 3, 2004....”
At that same meeting, the board approved a resolution suspending Clay with pay pending a hearing and until a decision by the board on certain charges, or the expiration of his contract, whichever occurred earlier. In addition, the board appointed petitioner as acting superintendent pending a decision by the board on the charges against Clay or the expiration of his contract, whichever occurred earlier.
On February 28, 2005, Clay’s contract expired. The board took no further action regarding petitioner’s status. She continued to carry out the superintendent’s duties.
At its meeting on July 12, 2005, the board approved a resolution terminating petitioner as acting superintendent, effective July 12, 2005. This appeal ensued. Petitioner’s requests for interim relief were denied on July 27 and September 23, 2005.
Petitioner contends that the board’s summary termination violated her constitutional rights and her due process rights contained within the October 21, 2004 contract. Petitioner submits that her termination was arbitrary and capricious and argues that it violated Education Law �2507. Petitioner seeks reinstatement as superintendent with full pay and benefits, an order nullifying the board’s termination decision, and a finding that her October 21, 2004 contract is in full force and effect. Petitioner also contends that respondent board members should be removed from office for alleged willful violations of law and neglect of duty.
Respondents maintain that petitioner fails to meet her burden of establishing a clear legal right to the requested relief and fails to set forth a claim upon which relief may be granted. Respondents argue that petitioner’s termination was in all respects legal and proper and that her contract with the board is void and unenforceable because the board did not have the authority to enter into the agreement. They further contend that all respondents acted in good faith and that petitioner failed to establish conduct on the part of respondent board members that would justify their removal.
The board and respondent board members further contend, among other things, that petitioner failed to prove that she has a constitutional property right in the superintendent’s position. They also maintain that the Commissioner lacks jurisdiction over petitioner’s constitutional claims and allege that the petition lacks a verification. They further maintain that respondent Hamilton abstained from the vote that terminated petitioner and, therefore, she is not a proper party in this appeal. In addition, Clay and respondent board members assert that they are entitled to certificates of good faith pursuant to Education Law �3811.
I must first address several procedural issues. By letter dated August 12, 2005, petitioner submitted additional papers pursuant to �276.5 of the Commissioner’s regulations. Respondents object to the submission. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR �276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086). Petitioner’s additional submission reargues points made in her petition and adds new arguments and exhibits that should have been included in her petition, or as permitted, in a reply. However, petitioner failed to submit a reply to respondents’ answers. Accordingly, I have not considered petitioner’s submission (Appeal of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Appeal of Goldin, 43 id. 330, Decision No. 15,009).
By letter dated September 8, 2005, petitioner requested permission to file a late memorandum of law with an attached exhibit. A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Accordingly, I have accepted petitioner’s memorandum of law only to the extent that it consists of arguments of law, but have not considered any belated assertions or the exhibit. Respondents also submitted memoranda of law with exhibits attached. I have likewise not considered those additional exhibits.
I have accepted for consideration, the submissions of the board and respondent board members, dated October 21, 2005 and May 30, 2006, indicating that respondents Soufiane and Butler are no longer board members. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). Since respondents Soufiane and Butler are no longer members of the board, petitioner’s request for their removal is moot.
The board contends that the petition is not properly verified as required by �275.5 of the Commissioner’s regulations. The petition submitted to my Office of Counsel contains the requisite verification. A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of O.W., 43 Ed Dept Rep 150, Decision No. 14,949; Appeal of Goldin, 43 id. 20, Decision No. 14,904). Accordingly, I decline to dismiss the petition for lack of proper verification.
I also reject respondent Hamilton’s claim that she is not a proper party to the removal application because she abstained from the vote terminating petitioner’s employment. The petition contains other allegations of alleged improper conduct on the part of respondent board members, including respondent Hamilton. Accordingly, I refuse to dismiss the application against respondent Hamilton on that basis.
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). The initial question in this appeal is whether petitioner was dismissed in violation of her contract. I find that she was not because petitioner did not have a valid contract with respondent board at the time of her dismissal.
While petitioner cites Education Law �2507 in support of her position, that statute pertains only to small city schools districts and, therefore, is not applicable in the instant appeal. The relevant provision of law is Education Law �1711(3), which provides that a board of education of a union free school district may appoint a superintendent of schools and enter into a contract of employment with such superintendent for a period of not less than three and not more than five years. The board’s unilateral termination of Clay in October 2004 without adhering to the termination procedures under his contract constituted an unlawful breach that negated the termination (seeLewiston-Porter CSD v. Sobol, 154 AD2d 777). The board’s resolutions to reinstate and subsequently suspend Clay as superintendent, followed by its appointment of petitioner as acting superintendent, nullified petitioner’s earlier appointment as superintendent and the corresponding contract. Because there was never any subsequent resolution by the board appointing petitioner as superintendent, nor any corresponding new employment agreement, I find that petitioner served as acting superintendent without a contract until her termination. Therefore, I find no merit to petitioner’s claim that she was entitled to contractual due process prior to termination.
With respect to petitioner’s constitutional claim, the United States Supreme Court has held that the principle “proscribing summary dismissal from public employment without hearing or inquiry required by due process” also applies to an individual without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment (Board of Regents v. Roth, 408 U.S. 564, 577, citing Connell v. Higginbotham, 403 U.S. 207).
Based on the record before me, petitioner has failed to demonstrate that she had a clearly implied promise of continued employment. Petitioner was removed from the position of superintendent when the board reinstated Clay in December 2004. She was then appointed acting superintendent. The resolution appointing petitioner as acting superintendent specifically indicated that she would only serve as acting superintendent “pending the rendition of a decision by the Board of Education on the CHARGES, or the expiration of the period of the subject Employment Agreement on February 28, 2005, whichever shall occur earlier.” The fact that petitioner continued in that role beyond the conditions set forth in the resolution does not clearly evince an expectation of continued employment that would invoke the fundamental principles of due process prior to termination.
Moreover, while petitioner maintains that respondent board intended that her contract and employment would survive the reinstatement of respondent Clay and her subsequent appointment as “acting” superintendent, I note that certain statements made in the Clay appeal suggest otherwise. In that case, the board’s attorney stated in an affirmation that “Were the Commissioner to reinstate [Clay]..., it would mean that Susan Johnson’s employment as Superintendent, which was approved by a majority of the Board of Education as the new leadership for the District, would be set aside ....” In addition, in the board’s answer in the Clay appeal, the board stated that “...Johnson was the contractual Superintendent of the [district]... from October 23, 2004 – December 5, 2004; she has been the Acting Superintendent of the [district]... since December 5, 2004.” Thus contrary to petitioner’s assertions, I find no clearly implied promise of petitioner’s continued employment. Accordingly, with respect to her constitutional claim, I find that petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief.
With respect to petitioner’s application to remove respondents Hamilton and Schneider, a member of a board of education may be removed from office pursuant to Education Law �306 when it is proved to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588; Application of Kozak, 40 id. 195, Decision No. 14,459). To be considered willful, a respondent’s actions must have been intentional and with a wrongful purpose.
The allegations supporting petitioner’s claim for respondents Hamilton and Schneider’s removal are stated “upon information and belief” or are speculative as to what those board members intended to do once petitioner was removed from office. As noted previously, petitioner has the burden of establishing facts in support of her claim. On the record before me, petitioner has failed to provide any evidence of wrongdoing on the part of respondents Hamilton and Schneider. Accordingly, petitioner’s application is denied.
One administrative matter remains. Respondent Clay and respondent board members have requested that I grant them a certificate of good faith pursuant to Education Law �3811(1). Such certification is solely for the purpose of authorizing the board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties as superintendent and board members. It is appropriate to issue such certification unless it is established on the record that the requesting board member or officer acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Zimmerman, et al., 42 id. 205, Decision No. 14,823). On the evidence in the record before me, and for the reasons set forth above, I will issue the requested certifications for the limited purpose of �3811(1).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.
END OF FILE
 Clay’s appeal was eventually withdrawn.
 Pursuant to �276.6 of the Commissioner’s regulations, the Commissioner, in his discretion, may consider any official records on file in the Education Department which relate to the issues involved in an appeal.