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Decision No. 16,217

Appeal of ANNE M. CHRISTIANO from action of the Board of Education of the City School District of the City of Johnstown regarding denial of tenure and application for the removal of board members Leslie Buggeln-Bosworth, Scott Miller, James Levin and Joanne Freeman.

Decision No. 16,217

(March 31, 2011)

Law Office of Matthew E. Trainor, LLC, attorney for petitioner, Matthew E. Trainor, Esq., of counsel

Girvin & Ferlazzo, PC, attorneys for respondents, Kristine A. Lanchantin, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Johnstown (“respondent board” or “board”) to deny her tenure and seeks the removal of board members Leslie Buggeln-Bosworth, Scott Miller, James Levin and Joanne Freeman (collectively “respondents”).  The appeal must be dismissed and the application denied.

The board approved petitioner’s probationary appointment as an elementary school principal effective June 15, 2005.  On May 21, 2008, petitioner entered into a “Juul Agreement” to extend her probationary period for an additional year, which was approved by the board on June 25, 2008.  The following year, the superintendent recommended petitioner for tenure.  However, on April 30, 2009, the board voted to reject the superintendent’s recommendation.  Petitioner requested the basis for the vote.  The board provided the following reasons:  that petitioner had poor communication skills, that she lacked a professional demeanor, and that she exhibited a lack of leadership and created divisiveness in her building.  By letter dated June 3, 2009, petitioner replied to the board.  On June 10, 2009, the board voted on the superintendent’s recommendation and denied petitioner tenure.  This appeal ensued. 

Petitioner asserts that the board acted in bad faith and was arbitrary and capricious in denying her tenure.  Petitioner seeks to overturn the tenure determination and requests the removal of the board members who voted against granting her tenure.  Petitioner asserts that respondent board members acted in bad faith, violated district policy by failing to have complaints concerning petitioner referred to the superintendent and violated Education Law §1708 by failing to have a visitation committee visit each school at least once a year.  Petitioner also asks the Commissioner to deny respondent board members certificates of good faith.    

Respondents maintain that petitioner has failed to state a claim upon which relief can be granted and that she has not properly served the individual board members named in the caption. 

Initially, I must address respondents’ objection to petitioner’s reply.  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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

Respondents assert that petitioner failed to properly join the individually named respondents for purposes of her removal claim.  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]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580). 

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Petitioner served a copy of the petition, affidavits and exhibits on the board by delivering a copy of the petition to the district clerk.  Petitioner has submitted a document entitled ”acceptance of service” dated July 10, 2009, apparently signed by the District Clerk under oath, in which she attested to her authority to accept service of process on behalf of the school district and members of the board of education.  The district has not provided any affidavit from Ms. Carpenter countering this “acceptance of service” to indicate that Ms. Carpenter did not accept service on behalf of the individual board members or did not have authorization to accept service on the members behalf.  On these facts, I find that the individual board members were properly served  (cf. Appeal of Catalan, 47 Ed Dept Rep 176, Decision No. 15,660 [valid service not established where petitioner failed to prove that individual served was authorized to accept service]).

With regard to petitioner’s claim regarding the denial of tenure, Education Law §3012(1)(b) provides that the service of a principal “may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.”  Generally, a board of education has the unfettered right to terminate a probationary principal’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (Appeal of Rubinstein, 45 Ed Dept Rep 299, Decision No. 15,329).   

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Although there were positive comments in the record about petitioner’s administrative abilities, she has failed to allege or establish that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.  Therefore, petitioner has failed to meet her burden of proof. 

Petitioner has also failed to establish facts sufficient to warrant removal of the individually named respondents pursuant to Education Law §306.  A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  To be considered wilful, a respondent’s actions must have been intentional and with a wrongful purpose (Application of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of Giardina, 46 id. 524, Decision No. 15,583). 

Petitioner has failed to establish that the individual respondents intentionally acted with a wrongful purpose to disregard a lawful duty or violate a legal requirement, and thus has failed to establish any ground for their removal under Education Law §306. Respondent board members have submitted affidavits in which they state that their determination to deny petitioner tenure was based upon concerns about petitioner’s communication skills, professional demeanor and leadership qualities exhibited during her four probationary years as principal within the district.  While petitioner questioned the factual basis for the board members’ determination, she has not demonstrated that respondent board members intentionally and with a wrongful purpose violated a lawful duty in making these judgments. 

Petitioner also claims that respondent board members violated district policy which requires all complaints from the public be made to the superintendent before being brought to the board of education.  The Commissioner of Education has the authority to enforce a board policy (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740; Appeal of Fusco, 39 id. 836, Decision No. 14,396). However, the Commissioner will exercise this authority only when petitioner establishes that a policy has clearly been violated (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740; Appeal of Marek, 35 id. 314, Decision No. 13,554).  In the instant matter, a board member received a complaint from the public.  As affirmed by the superintendent, this complaint was then forwarded to her attention and subsequently addressed with petitioner.  The board member who received the complaint promptly forwarded it to the superintendent to provide follow-up in accordance with district policy.  Therefore, I find petitioner’s claim that respondent board members violated district policy to be without merit.

Petitioner further asserts that respondent board members should be removed for failing to establish a visitation committee in accordance with Education Law §1708.  Although it appears a formal visitation committee may not have been established, it does appear that the board scheduled visits to the district’s schools on a regular basis.  Accordingly, I find insufficient basis for removal on this ground.

Finally, petitioner asks that I deny any requests for certificates of good faith pursuant to Education Law §3811.  Respondents assert that certificates of good faith are not requested in this matter and accordingly, I need not address this issue.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

END OF FILE.