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Decision No. 13,150

Appeal of RICHARD L. OLCOTT from action of the Board of Education of the South Orange Central School District relating to payment for accumulated vacation credits.

Decision No. 13,150

(April 8, 1994)

Raymond G. Icobelli, Esq., attorney for petitioner

Raymond G. Kuntz, P.C., attorney for respondent, Raymond G. Kuntz and Mario L. Spagnuolo, Esqs., of counsel

SOBOL, Commissioner.--Petitioner challenges the refusal of the Board of Education of the South Orange Central School District ("respondent") to pay him for unused vacation leave he had accumulated at the time of his retirement. The appeal must be dismissed.

Petitioner was the superintendent of respondent's school district for a number of years. In 1989, he informed respondent that he intended to retire at the end of June 1992. Petitioner and respondent thereafter entered into an agreement covering his final three years of employment. Paragraph "Third (c)" of the contract provides:

(c) The superintendent shall be required to perform the services of Superintendent of Schools for a period of twelve (12) months exclusive of Saturdays, Sundays and school holidays of each fiscal year of the Board of Education, which fiscal year begins on July 1, and ends on June 30 in each year. It is the intent of both parties that the Superintendent be entitled to and must take twenty-two (22) vacation days per year not including Saturdays, Sundays and school holidays. However, in the event that the Superintendent must work any or all of these days, he shall not be entitled to extra compensation therefore. (emphasis supplied).

During the first two years of the contract, petitioner either used all his vacation days or made no claim for payment for any unused days. Near the end of May 1992, petitioner informed respondent that his efforts to provide a smooth transition for the new superintendent had precluded him from using all his contractual vacation time during the 1991-92 school year. He asked to be compensated for this unused vacation time. Respondent rejected that request and advised petitioner to take as many vacation days as possible during the balance of the school year, consistent with his professional responsibilities.

Petitioner contends that he is entitled to payment for his unused accumulated vacation leave because his duties as superintendent during the second half of his final year of employment effectively prevented him from taking vacation time. Petitioner also contends that respondent has made such payments in the past. I find petitioner's contentions without merit.

While petitioner could be entitled to reimbursement for unused vacation leave if his employment agreement so provided, petitioner's contract specifically states otherwise. Article VIII, section 1 of the New York State Constitution prohibits the expenditure of public funds in the absence of a contractual right or express statutory provision to the contrary (Hess v. Bd. of Educ., 41 AD2d 151). Section 92(1) of the General Municipal Law, the express statutory provision applicable in this matter, states:

The governing board of each country, city, town, village, school district, and of each fire district or other district corporation and of each civil or political division of the state by local law, ordinance or resolution, or in the city of New York the mayor by order may grant vacations, sick leaves and leaves of absence to its officers or employees with or without pay and adopt rules and regulations in relation thereto. Notwithstanding any other provision of law, any such governing board or mayor may also in like manner provide for cash payment of the monetary value of accumulated and unused vacation time or time allowances granted in lieu of overtime compensation standing to the credit of its officers and employees at the time of their separation from the service, or in the case of death in service, to be paid to their beneficiaries. (emphasis supplied).

The record does not indicate that respondent adopted a resolution supporting petitioner's claim for reimbursement for accumulated unused vacation leave. As noted above, the employment contract specifically prohibits such payments.

The fact that petitioner felt his duties during the latter part of the 1992-93 school year prevented him from using his accumulated vacation days, while noteworthy, does not provide a legal justification for the expenditure of public funds by respondent to pay petitioner in violation of the State Constitution. Moreover, it is not clear from the record that petitioner was prevented from taking vacation time earlier in the school year.

Petitioner's contention that respondent previously reimbursed other administrators upon leaving employment is not supported by the record. There is no evidence that respondent reimbursed any other administrator for unused accumulated vacation leave upon retirement unless the administrator's employment contract provided for such compensation. In any event, prior conduct involving such payments does not form a basis for recovery against a public employer (Hess v. Bd. of Educ., supra; Seif v. City of Long Beach, 286 NY 382; Matter of Stevens, 23 Ed Dept Rep 161).