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Decision No. 12,957

Appeal of MYRTLE JANES from action of the Board of Education of the Wyandanch Union Free School District and Calvin Wilson, as acting superintendent of schools, regarding termination of probationary appointment.

Decision No. 12,957

July 9, 1993

Harriet A. Gilliam, Esq., attorney for petitioner

Pelletreau & Pelletreau, Esqs., attorneys for respondents,

Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from action of the Board of Education of the Wyandanch Union Free School District terminating her probationary appointment as a teacher. The appeal must be dismissed.

Respondent board of education appointed petitioner as a probationary teacher on November 28, 1989. On April 14, 1992 respondent's then superintendent of schools, Sterling Keyes, notified petitioner that, pursuant to Education Law '3012, he was not recommending her for tenure and was recommending termination of her services at the board's May 26, 1992 meeting. In response, petitioner requested a statement of the reasons for such recommendation pursuant to Education Law '3031(a). On May 12, 1992, Dr. Keyes responded in writing, indicating that his decision not to recommend petitioner for tenure was based upon her alleged use of corporal punishment and an unacceptable time and attendance record.

On May 19, 1992, petitioner submitted to the board of education a written response to the superintendent's statement pursuant to Education Law '3031. In addition, pursuant to the district's collective bargaining agreement, petitioner requested a hearing before the board prior to its acting on the superintendent's recommendation. At the May 26, 1992 board meeting, a resolution terminating petitioner's employment was put forth by Dr. Keyes.

The board voted to table the resolution until after the requested hearing was held. On June 30, 1992, Dr. Keyes retired as superintendent of schools. Before Dr. Keyes' retirement, respondents sought a waiver pursuant to Education Law '3003(3) for respondent Wilson to serve as acting superintendent, with all the powers, duties, rights and responsibilities of that position. On June 2, 1992, I granted the waiver. Upon Dr. Keyes' retirement, respondent Wilson was appointed acting interim superintendent.

On July 20, 1992, respondent board of education held a hearing on the recommendation to terminate petitioner's probationary appointment. Petitioner was represented by counsel consistent with the terms of the collective bargaining agreement. On July 28, 1992 respondent voted not to grant petitioner tenure and terminated her services, effective August 31, 1992. By letter dated July 30, 1992, the assistant superintendent of personnel notified petitioner of the decision. This appeal ensued.

Petitioner argues that, at the May 26, 1992 board meeting, Dr. Keyes "pulled" his recommendation not to recommend her for tenure and that, consequently, upon his retirement there was no proper recommendation before the board on July 28, 1992 when it voted to terminate her probationary appointment. She contends that respondent Wilson had no authority to make any recommendation to the board because he is not certified to supervise teachers and, moreover, had no direct knowledge of her performance. Petitioner also claims that Dr. Keyes' allegations of corporal punishment were unsubstantiated; that her absences were associated with a workman's compensation injury; and that her evaluation did not support the recommendation to terminate her services. She asserts, therefore, that there was no basis for termination of her probationary appointment.

Respondent board of education asserts that its actions regarding termination of petitioner's probationary appointment were proper and complied with applicable law. Respondent seeks dismissal of the petition.

The record before me indicates that respondent complied with Education Law ''3012 and 3031 regarding termination of probationary appointments. Education Law '3012 provides that the services of a probationary teacher may be discontinued at any time during the probationary appointment upon recommendation of the superintendent. Education Law '3031 provides that a teacher for whom a recommendation not to appoint to tenure will be made is entitled to written notice of such recommendation 30 days prior to the meeting at which the recommendation will be made. Pursuant to '3031, Dr. Keyes notified petitioner in writing of his recommendation at least 30 days prior to the board meeting at which he recommended termination of petitioner's appointment. Petitioner requested and received a statement of reasons for the recommendation and was afforded an opportunity to respond. Further, petitioner was provided a hearing before the board, with representation, pursuant to the district's collective bargaining agreement.

Petitioner's claim that a proper recommendation by the superintendent was not before the board when it terminated her services is not supported by the record. Dr. Keyes' recommendation was properly presented to the board pursuant to Education Law '3012 at respondent's May 26, 1992 board meeting. Contrary to petitioner's claim, there is no evidence that Dr. Keyes' recommendation was withdrawn; instead, the record indicates that the board of education merely tabled any action on the recommendation until the hearing requested by petitioner was held. The fact that Dr. Keyes retired before the board acted on his recommendation does not alter the fact that the recommendation was properly made and remained before the board for action. Nor did the superintendent's retirement serve to rescind or negate his recommendation. Even if that were the case, it was within the authority of the acting superintendent - as evidenced by my waiver granted on June 2, 1992 - to renew such recommendation, had it been necessary to do so, at the July 28, 1992 meeting held subsequent to the hearing (See, Appeal of Kaminski, 6 Ed Dept Rep 161). Therefore, I find petitioner's claim that there was no valid recommendation before the board without merit. The record also indicates that petitioner received proper notice of the recommendation; had an opportunity to respond thereto; received a hearing under the collective bargaining agreement; and was apprised of all proceedings relating to the superintendent's recommendation. Consequently, I do not find petitioner's other procedural objections meritorious.

Pursuant to Education Law '3012(a), the services of a probationary teacher may be discontinued at any time during the probationary period and dismissal of a probationary teacher will not be set aside unless the teacher shows that a board terminated service for a constitutionally impermissible purpose (James v Board of Educ. of Cent. School District No. 1 of Towns of Orangetown and Clarkstown, 37 NY2d 891; Appeal of Benn-Abbey, 32 Ed Dept Rep 141; Appeal of Vienie, 31 id. 216). Although petitioner makes a conclusory allegation in her petition claiming that her Equal Protection rights were violated, she offers no proof to establish her claim. Petitioner's other allegations merely indicate her disagreement with respondents' actions, and, consequently, provide no basis on which to set aside respondents' decision.