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Decision No. 13,430

Appeal of MARILYN FIORE from action of the Board of Education of the Glens Falls Common School District regarding a contract.

Decision No. 13,430

(June 9, 1995)


Ferrara Jones, Esq., attorney for petitioner, Daryl S. Cutter, Esq., of counsel

Judge & Duffy, Esqs., attorneys for respondent, Monica A. Duffy, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges respondent's recision of a contract. The appeal must be dismissed.

Petitioner has been employed by the Board of Education of the Glens Falls Common School District ("respondent") as an account clerk/treasurer since 1976. Petitioner has served in that position pursuant to a series of one-year employment contracts with respondent. On March 17, 1994, petitioner signed an annual employment contract for the period July 1, 1994 to June 30, 1995.

On June 15, 1994, petitioner announced that she was retiring from her position at the end of the term of her 1994-95 employment agreement. At that time, she presented to respondent a proposed agreement for retirement benefits. On June 30, 1994, petitioner and respondent signed an agreement by which petitioner would resign her position, effective June 30, 1995. In return, respondent would allow petitioner to go on paid leave effective March 1, 1995, pay her for any unused accumulated sick leave days remaining as of June 30, 1995 and provide her and her spouse with health and dental insurance benefits similar to those provided under the district's collective bargaining agreement with the teachers' union.

On or about July 1, 1994, the composition of the board of education changed as a result of an election and a resignation. On July 28, 1994, respondent voted to rescind the retirement agreement with petitioner and offered her a modified agreement. Petitioner states, "upon information and belief", that the modified contract differs from the original contract in two respects. Petitioner further states that, unlike the original contract, the modified contract does not provide medical coverage for petitioner's spouse or payment for unused accumulated sick leave. Respondent denies that allegation, but has not provided petitioner with a copy of the modified agreement or submitted a copy as part of the record in this appeal.

A procedural question must be dealt with at the outset. Respondent objects to the reply submitted by petitioner and to allegations and exhibits which are attached to petitioner's memorandum of law. Respondent's objection is well taken. Petitioner's reply and memorandum of law, to the extent they contain new material, will not be considered. Section 275.14 of the Regulations of the Commissioner of Education provides that a petitioner may submit a reply to affirmative defenses raised in a respondent's answer. A reply is not meant to buttress the allegations in the petition or to belatedly add assertions which should have been in the petition. New allegations and exhibits which are part of the memorandum are also not part of the record and will therefore not be considered (Matter of Bd. of Educ., Broadalbin CSD, 24 Ed Dept Rep 51).

Turning to the merits of the appeal, petitioner contends that respondent has improperly and unilaterally rescinded a valid contract. Respondent maintains that its action was proper because the original contract lacked consideration and was, therefore, a gift of public monies in violation of Article VIII, section 1 of the State Constitution. Specifically, respondent contends petitioner has a yearly employment agreement which ends on June 30, 1995, which contains provisions for retirement. Respondent maintains that without additional consideration, the retirement agreement signed on June 30, 1994, which offered petitioner additional benefits, is null and void. Respondent also argues that petitioner's decision to retire cannot be considered consideration for the retirement agreement because, pursuant to the annual employment agreement, her employment was already scheduled to cease on June 30, 1995.

To form a valid contract, there must be, among other things, a thing to be contracted for -- a valuable consideration (Justice v. Lang, 42 NY 493; Exchange Bakery and Restaurant, Inc. v. Rifkin, 245 NY 260; I & I Holding Corp. v. Gainsburg, 276 NY 427). However, courts will not ordinarily inquire into the adequacy of the consideration for contracts (Mandel v. Liebman, 303 NY 88; Cowee v. Cornell, 75 NY 91). A benefit to the promisee or a detriment to the promisor is sufficient consideration for a contract (Brown Bros. Electrical Contractors, Inc. v. Beam Constr. Corp., 41 NY2d 397). Accordingly, the issue before me is not whether the retirement contract is a "good deal", but rather whether that contract is supported by valuable, legal consideration.

Petitioner contends that her willingness to retire effective June 30, 1995 constitutes valid consideration. I find no merit in that contention. The record indicates that upon announcing her retirement, petitioner presented respondent with the June 30, 1994 retirement agreement. Respondent did not offer it as an incentive for petitioner's retirement. Moreover, pursuant to her employment contract, petitioner's employment automatically ends on June 30, 1995. Since petitioner had no right to continued employment in respondent's district beyond that date, respondent had no reason to seek her consent to retire. Accordingly, respondent received no consideration for the retirement agreement.

Petitioner also contends that consideration for the retirement agreement is shown by the parties' willingness to settle the number of sick, personal and vacation days accrued to her. However, there is no indication in the record that there was any dispute between the parties concerning petitioner's accrued leave time. Again, petitioner has failed to show that the retirement agreement is supported by any consideration. Accordingly, I find no basis to overturn respondent's recision of the June 30, 1994 retirement agreement.