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Decision No. 15,750

Appeal of JANET C. WILSON from action of the Board of Education of the Harborfields Central School District regarding an employment contract.

Decision No. 15,750

(May 21, 2008)

Bond, Schoeneck & King, PLLC, attorneys for petitioner, Howard M. Miller, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw and Beth L. Sims, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Harborfields Central School District (“respondent”) not to extend her employment contract.  The appeal must be dismissed.

On June 8, 2005, respondent and petitioner executed an employment contract (“contract”) providing for petitioner’s employment as superintendent of schools.  The contract provides for a three year term of employment, commencing on August 1, 2005 and terminating on July 31, 2008.

The contract also contains an extension and renewal provision.  Specifically, paragraph 3(b) of the contract provides:

This contract shall be deemed extended for the additional period of one (1) year if [respondent] does not give notice of its intention not to renew or extend such contract by June 30th of the second year of the contract as successively extended, provided that the Superintendent of Schools shall notify the Board of Education in writing no later than April 1st of the second year of the contract as successively extended of the Board’s obligations under this paragraph.

By letter dated March 28, 2007, petitioner notified respondent of its obligation under the contract to give notice of its intention not to renew or extend the contract for an additional year.  By letter dated June 7, 2007, respondent advised petitioner that it was not willing to extend her contract beyond its stated expiration date.  Respondent also asked petitioner to withdraw the March 28, 2007 notice so that no formal public action was required.

By letter dated June 12, 2007, petitioner asked respondent to reconsider its position.  By letter dated June 19, 2007, respondent advised petitioner that its prior decision to deny an extension of the contract remained unchanged.

At a special meeting on June 24, 2007, respondent voted not to extend the contract beyond July 31, 2008.  This appeal ensued.

Petitioner alleges that respondent did not conduct her annual evaluations for the 2005-2006 and 2006-2007 school years in accordance with the contract.  With respect to the 2005-2006 school year, petitioner acknowledges receiving a document labeled “Evaluation of the Superintendent.” However, she argues that this document was not a formal evaluation as contemplated by her contract.  With respect to the 2006-2007 school year, the record contains an undated, unsigned document which respondent asserts is petitioner’s evaluation.  Petitioner also argues that the evaluations were not conducted in accordance with board policy number 0320 and §100.2(o)(v) of the Commissioner’s regulations.  Petitioner further contends that respondent’s June 24, 2007 meeting was not properly noticed and was therefore held in violation of board policy number 2340.  Petitioner requests that I direct respondent to extend the term of the contract through June 30, 2009.

Respondent alleges that service of the petition was improper, that the appeal is untimely to the extent it challenges the sufficiency of her 2005-2006 and 2006-2007 evaluations, that the petition fails to state a clear legal right to the relief requested and that petitioner has failed to meet her burden of proof.  Respondent also alleges that I lack jurisdiction to consider a violation of policy number 2340.

Initially, I must first address a number of procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent contends that the appeal must be dismissed because petitioner failed to effect proper service of the petition.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

Petitioner maintains that the petition was properly served on a member of the board of education and submits an affidavit attesting to such service.  Subsequent to petitioner’s reply, respondent submitted two affidavits regarding service of the petition for inclusion in the record pursuant to §276.5 of the Commissioner’s regulations.  Petitioner objects to these submissions.  Respondent explains that it was unaware of petitioner’s alleged manner of service until it received petitioner’s reply.  However, respondent raised the issue of service as an affirmative defense in its answer.  Therefore, respondent’s request to submit the affidavits must be denied since they concern events that occurred before the submission of respondent’s answer and its explanation why they could not have been submitted with its answer is unpersuasive (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050).  Accordingly, I decline to dismiss the appeal on the grounds of improper service.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Pursuant to the contract, petitioner’s 2005-2006 evaluation was due no later than May 31, 2006 and her 2006-2007 evaluation no later than May 31, 2007.  The appeal was commenced on July 20, 2007, more than 30 days later.  Therefore, petitioner’s allegations regarding the sufficiency of those evaluations must be dismissed as untimely.

The appeal must also be dismissed on the merits.  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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner has provided no legal basis to support her claim that the alleged breach of contract with respect to her evaluations entitles her to an extension thereof.

Absent respondent’s failure to provide the required notice, there is no other contractual provision which grants petitioner the right to an automatic extension.  Specifically, petitioner’s performance, whether satisfactory or unsatisfactory, does not trigger the extension provision of the contract.  In support of her claim, petitioner relies on cases upholding arbitrators’ awards ordering the temporary reinstatement of probationary teachers as a remedy for improper evaluations conducted in violation of a collective bargaining agreement.  I find these cases inapplicable to this appeal because they apply to probationary employees whose employment, unlike petitioner’s, is not subject to the provisions of an employment contract.

Moreover, petitioner has provided no evidence that the alleged improper evaluation process resulted in the non-renewal of her contract or that respondent declined to extend the contract because of her performance.  Significantly, respondent alleges that there were no serious performance concerns that came before it during the 2006-2007 school year that would have impacted petitioner’s continuing employment.

Petitioner also provides no legal basis to support her claim that she is entitled to an extension of the contract because respondent allegedly did not comply with the board policy or regulation in question.  Even if respondent did not fully comply with these provisions, the facts of this appeal present at most an irregularity with the formal procedures which is insufficient to nullify respondent’s decision not to extend petitioner’s contract (seeApplication of Fusco, 31 Ed Dept Rep 119, Decision No. 12,589).

Petitioner also alleges that her contract should be extended because the June 24, 2007 meeting violated the notice requirements of board policy number 2340.  That policy generally restates the notice requirements of the Open Meetings Law (Public Officers Law §100 etseq.) with a few minor differences.  Respondent avers that notice of the meeting was conspicuously posted in five places, including on the front doors of each of the district’s school buildings and in the public library.  While respondent admits it did not provide notice to the media, it maintains that such notice was not practicable in the short time frame before the meeting.  Under these circumstances, I find that at most there was a technical violation of respondent’s policy which does not entitle petitioner to the extension she seeks.[1]

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE



[1] In reaching this conclusion, I make no determination whether respondent complied with the provisions of the Open Meetings Law (Public Officers Law §100 etseq.).  Alleged violations of the Open Meetings Law must be pursued in a judicial proceeding in State Supreme Court (see Public Officers Law §107).