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Decision No. 13,681

Appeal of WILLIAM L. DONLON, from action of the Board of Education of the Caledonia-Mumford Central School District regarding termination of employment.

Decision No. 13,681

(September 28, 1996)

O'Hara & O'Connell, P.C., attorney for petitioner, Dennis G. O'Hara, Esq., of counsel

Woods, Oviatt, Gilman, Sturman & Clarke, Esqs., attorney for respondent, Donald W. O'Brien, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner appeals his termination by the Board of Education of the Caledonia-Mumford Central School District ("respondent"). The appeal must be dismissed.

Petitioner served as respondent's superintendent of schools from August 1, 1988 until his termination on August 29, 1995. He was employed by respondent pursuant to a contract that had been extended five times, with the most recent extension scheduled to expire on July 31, 1996. The contract provided that petitioner's employment could only be terminated prior to the expiration of the established term for "good and just cause" proven at a fair hearing.

In the Spring of 1993, the school district anticipated classroom space shortages for the 1993-94 school year due to increasing student enrollment. In April 1993, petitioner became aware that a neighboring district had purchased portable trailers for use as classrooms while a capital project was in progress. Petitioner, respondent's supervisor of buildings and grounds and a school board member visited the neighboring district and inspected the trailers. After this inspection, petitioner contacted the vendor of the trailers and negotiated a price of $105,110 for the purchase, delivery and installation of four trailers. The purchase of the trailers was not competitively bid. Petitioner alleges that he recommended that respondent hire an architect for the project, but that respondent rejected his recommendation after a board member commented that the services of an architect were unnecessary because architectural drawings were available for the trailers.

On April 13, 1993, respondent adopted a resolution:

to place a proposition on the ballot for voting on June 2, 1993 to purchase portable classroom space at a cost not to exceed $115,000, with the right to decide need at a later time

On June 2, 1993, the voters rejected that proposition as well as the proposed 1993-94 school district budget. On June 8, 1993, respondent passed a resolution to lease the portable classrooms based upon petitioner's belief that they could no longer be purchased during the 1992-93 fiscal year because a minimum of 45 days' public notice was required for a revote on the proposition. After the adoption of this resolution, the school district's attorney advised respondent that it could resubmit the proposition upon an abbreviated 14 days' notice. On the basis of this information, respondent passed another resolution authorizing the resubmission of the proposition to district voters on June 30, 1993 so that the vote could take place before the end of the fiscal year to facilitate the district's receipt of State aid for the purchase of the portable classrooms in the 1993-94 school year in the event this proposition was approved.

On June 30, 1993, the voters approved the proposition to purchase the portable classrooms. On the evening of the vote, respondent's newly hired business manager signed a purchase contract and issued a check in the full amount of the purchase price, $105,110.00, to the vendor. The check was signed by the business manager and the board president. In November 1993, the portable classrooms arrived and installation began. In January 1994, petitioner submitted specifications for the portable classrooms to the State Education Department ("SED") as a preliminary submission, but the classrooms did not meet SED requirements.

By March 1994, problems arose with the installation of the portable classrooms and the vendor was not performing satisfactorily. Respondent hired an engineering firm to make recommendations to bring the portable classrooms into compliance with SED requirements, but respondent rejected the firm's recommendations. The district's school attorney informed respondent that the vendor had gone out of business and left no assets, although petitioner contends that the vendor merged with a Delaware corporation that was subject to all debts, liabilities and obligations of the vendor. Respondent eventually chose to discontinue the project and sell the trailers.

On October 26, 1994, a majority of respondent's newly constituted board filed disciplinary charges against petitioner and asserted that he was responsible for various illegalities related to the portable classroom project. The charges were drafted by the district's attorney, Julia Garver. On November 7, 1994, respondent suspended petitioner for the pendency of the hearing, asserting that he was spending too much time preparing for the hearing and had allegedly berated the school business manager. Hearings on the charges against petitioner began on November 22, 1994 and concluded on June 23, 1995. In February 1995, respondent hired another attorney who was not prosecuting the charges against petitioner, to minimize the risk that there would be inappropriate ex-parte communications between the board and the prosecuting attorneys.

Respondent initially appointed a hearing officer to decide the charges it filed against petitioner after petitioner's counsel asserted that the board was not an unbiased decisionmaker in view of its involvement in the portable classrooms project. However, on November 23, 1994, that hearing officer resigned and a new hearing officer was appointed as referee and empowered only to make evidentiary rulings. On August 28, 1995, respondent convened in executive session and found petitioner guilty of Paragraphs 1, 2 and 3 and the First, Second, Third, Fifth, Sixth and Eighth Charges. On August 29, 1995, respondent held a regular meeting in public session and adopted a resolution discharging petitioner from employment. On September 12, 1995, respondent issued its written decision terminating petitioner's employment. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on October 11, 1995.

Petitioner raises a number of allegations regarding his termination, including bias on the part of individual board members and misconduct on the part of the district's school attorney. He alleges that he was denied due process by substantial delays in the hearings, failure to make findings of fact upon which the board's decision was based and ex-parte communications by the board with attorneys prosecuting the case. Petitioner makes numerous requests for relief, including reinstatement to his position and backpay from the date of his termination. Respondent contends that petitioner received a fair hearing and that there was good and just cause to terminate petitioner's employment. Respondent requests that the Commissioner affirm its decision and deny the relief requested by petitioner.

Petitioner focuses his objections on the alleged bias of the board members. He specifically claims that various board members were biased against him due to his enforcement of the district's anti-nepotism policy, failure to employ a board member's relative in a well-paying job, denial of a special transportation request for a member of a board member's family, discipline of the mother of a board member who was a school bus driver and firing of a board member who was previously employed as a wrestling coach for the district. Petitioner raises these issues as substantial evidence that the board was biased against him. In response, the district contends that in a small community such as Caledonia-Mumford, it is unrealistic to expect that a school administrator would not have involvement with individuals in the community, but that prior contacts do not substantiate a claim of bias. Furthermore, respondent claims that the board members were asked if they could fairly assess the evidence against petitioner and all the board members in question testified that they would decide the charges against petitioner based upon the evidence produced at the hearing. Based on the record before me, I do not believe that the bias issues presented by petitioner demonstrate that he was denied a fair hearing.

Petitioner's most serious allegation is that he did not receive due process in his termination hearing. He alleges that he did not receive due process for a variety of reasons, including the bias of individual board members, substantial delays in the hearing, ex-parte communications between the board and the board's failure to make findings of fact. Petitioner claims that certain board members, in collecting information about the situation, inquiring about petitioner's previous employment and in taking a preliminary vote to prefer charges, served dual and incompatible roles. However, the law is clear that the combination of investigative and adjudicatory functions in a single body in the context of administrative adjudication is not, in and of itself, a violation of due process. The United States Supreme Court has stated:

The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weaknesses, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guaranty of due process is to be adequately implemented.

Withrow v. Larkin, 421 US 35, at 47, 95 SCt 1465 (1975). As respondent notes, utilization of a decision-maker familiar with the facts of the case is not constitutionally proscribed (Hortonville Joint School. Dist. v. Hortonville Educ. Assn., 426 US 482, 96 SCt 2308, 49 LEd2d 1). Therefore, petitioner's claim of a denial of due process based on respondent's dual roles is not persuasive, especially when under petitioner's contract, the board was the only entity authorized to hear the charges against petitioner. In this case, petitioner objected to the appointment of an impartial hearing officer to decide this matter, and specifically requested that the school board hold the hearing as required under the contract. My review of the record in this case indicates that the procedure used afforded petitioner the process due him.

Petitioner also claims that respondent failed to make findings of fact to support its determination. The record shows that respondent issued its final decision terminating petitioner's services on September 12, 1995. The seven page decision sets forth the charges and provides the board's reasons for each determination and the evidence upon which it relied in making its determination. The form of the decision was agreed to by the parties in advance and the form was prepared by the board's attorney. Petitioner relies upon Appeal of Cauley, 33 Ed Dept Rep 502, to support his assertion that respondent's decision is unsupported by findings of fact. Cauley involved a board resolution which found a superintendent guilty of certain charges, determined that he had breached his contract and discharged him from employment. In that case, the board failed to provide the superintendent with a decision which stated the reasons for its determinations and an explanation of the evidence upon which it relied in reaching its decision. That is not the case here. Respondent's decision indicated whether a charge was sustained or not, the reasons for each determination, and the evidence relied upon. My review of these findings indicates that they are adequate.

Although I am constrained to dismiss this appeal, I must comment on the role of the board of education as constituted during the incident which gave rise to the charges against petitioner and the role of the district's school attorney. While petitioner failed in a number of respects to comply with existing law and regulations in connection with the portable classroom project, the record is clear that he did not act alone or without the knowledge and consent of the board of education or the district's school attorney. The contemporaneous minutes of board meetings indicate that the board was fully apprised of the matter and should have been aware of the statutory and regulatory requirements for the purchase and use of portable classrooms. I likewise find disingenuous the argument of respondent's counsel that she did not provide an opinion to respondent on any school matter unless specifically requested to do so and was unaware that a purchase of the portable classrooms would take place, when she in fact had a role in the submission of the second ballot proposition authorizing their purchase. While petitioner, as superintendent of schools and chief executive officer of the district, bore primary responsibility for problems which arose with the project, other parties were also clearly involved. In light of the unfortunate results in this case, I urge respondent and its counsel to be more conscientious of their responsibilities in the future.

I have reviewed the parties' remaining contentions and find them without merit.