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Decision No. 14,432

Appeal of KENNETH GAUL, et al. from action of the Board of Education of the Port Jefferson Union Free School District and Suzette Smookler, Bari George, Dennis Brennan, Margaret Reilly, Bruce Miller, Maged Atiya and Dr. Edward Reilly, Superintendent, regarding personnel decisions.

Decision No. 14,432

(August 14, 2000)

Steven E. Losquadro, Esq., attorney for petitioners

Ingerman Smith, L.L.P., attorneys for respondents, Neil M. Block, Esq., of counsel

CATE, Acting Commissioner.--Petitioner Gaul is a member of the Board of Education of the Port Jefferson Union Free School District ("respondent board"). The remaining petitioners are presumably parents of students who attend school in respondent’s district. Petitioners challenge respondents’ employment decisions respecting Carole Noren, the district’s former director of special education and Dr. Esther Fusco, Principal of Scraggy Hill Elementary School, located within the district, and seek removal of those board members who approved the challenged actions. The appeal must be dismissed.

On June 29, 1999, Dr. Edward J. Reilly, superintendent of schools, placed Fusco on administrative reassignment pending investigation of allegations of misconduct pertaining to her alleged "failure to safeguard the health and welfare of her students." Although it is unclear what prompted the investigation, Reilly details a number of incidents, some as remote as the 1993-94 school year, where Fusco allegedly acted inappropriately, several involving her failure to properly investigate and respond to parental complaints regarding various classroom incidents.

By letter dated October 8, 1999, respondents submitted a supplemental affirmation stating that Fusco has now been formally suspended from her position with pay and that charges have been preferred against her pursuant to Education Law "3020-a. Respondents attach a copy of the charges, which include some 49 specifications ranging from relatively minor offenses such as failing to timely submit the 1998-99 building art supplies order to the more serious, albeit remote, charge of failing to respond appropriately to allegations made during the 1993-94 school year that a teacher had taped the mouth of a student.

During the 1998-99 school year, Carole Noren was employed by the district as the director of special education. At the board’s July 6, 1999 meeting, respondent Reilly proposed a central office reorganization plan that included, among other things, abolishing Noren’s position and creating a new position of assistant superintendent for curriculum, instruction and pupil personnel services that would encompass the duties of Noren’s position. Before the board approved this reorganization plan, Noren was offered and accepted a retirement incentive.

Petitioners contend respondents unlawfully placed Fusco on administrative leave as "political retribution." They contend that this action will waste taxpayer funds because the district has hired an interim principal and will incur attorneys’ fees pursuing disciplinary charges against Fusco. Petitioners also contend, among other things, that respondents improperly coerced Noren to retire by proposing to eliminate her position and then offering her a retirement incentive, contingent upon Fusco’s willingness to resign her position. Petitioners also maintain that Noren’s retirement incentive is an unconstitutional gift of public funds. Petitioners seek, among other things, removal of those board members who ratified these actions, and reinstatement of both Fusco and the director of special education position.

Respondents contend that petitioners lack standing to challenge respondents’ employment decisions. As to the merits, respondent Reilly explains that although Fusco was initially reassigned to her home, she has since been assigned curriculum writing responsibilities at the high school. He contends that this action was prompted by his concern for the health and safety of Fusco’s students. Respondents also contend that Noren retired voluntarily. In addition, they assert that petitioners have failed to establish grounds for removing any of respondent board members. Additionally, by letter dated October 8, 1999, respondents submit a supplemental affirmation in which they assert that respondents’ decision to reassign Fusco pending investigation has been rendered moot by the board’s subsequent decision to prefer charges against her.

Preliminarily, I will address respondents’ request to file a supplemental affirmation. Because the events detailed in the affirmation occurred after respondents submitted their answer and are relevant to this appeal, I will grant respondents’ request.

Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Lucente, 39 Ed Dept Rep 244, Decision No. 14,227; Appeal of Morris, et al., 38 id. 427, Decision No. 14,066). Neither status as a resident of a district nor as a parent of a student in the district automatically confers on an individual the capacity to seek review of personnel actions by the board of education (Appeal of Rees, et al., 34 Ed Dept Rep 616, Decision No. 13,429). Rather, to maintain an appeal, an individual must also be aggrieved in the sense that he or she has suffered personal damage or injury to his or her rights (O’Shea v. Littleton et al., 414 U.S. 312; DeFunis v. Odegaard, 416 U.S. 312; Appeal of Rees, et al., supra).

In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Kozak, 39 Ed Dept Rep 278, Decision No. 14,237; Appeal of Shufelt, 38 id. 274, Decision No. 14,032). I find that petitioners’ unsubstantiated assertion that their children have been negatively impacted by Fusco’s removal is insufficient to establish the personal damage or harm necessary to confer standing to challenge respondents’ decision. Petitioners have similarly failed to establish that they have been harmed by respondents’ decision to abolish Noren’s position, or by the fact that she was allegedly forced to retire.

Nor do petitioners establish standing to challenge Fusco’s reassignment by asserting that the district is expending $475 per day to hire an interim principal and will incur additional expenses by instituting disciplinary proceedings against Fusco. Although school district residents have standing to challenge allegedly illegal expenditures of school districts (Appeal of Kimball, 36 Ed Dept Rep 508, Decision No. 13,787) a resident does not acquire standing merely by alleging that a personnel decision will have some fiscal impact. Petitioners do not allege that these expenditures are illegal, but rather, contend that they are wasteful. Such allegations do not establish the direct personal harm necessary to confer standing.

I also find without merit petitioners’ claim that Noren’s retirement incentive constitutes an unconstitutional gift of public funds. The Court of Appeals has interpreted Article VIII, section 1 of the New York State Constitution as requiring a legal obligation on the part of a municipality before public funds can be paid to individuals (Matter of Antonpoulou v. Beame, 32 NY2d 126). Such obligation may be either statutory or contractual (id.). Chapter 41 of the Laws of 1997, as amended by Chapter 70 of the Laws of 1999, established retirement incentives for certain eligible employees of the teachers’ retirement system. Pursuant to this legislation, respondent elected to offer eligible employees a retirement incentive. Accordingly, respondents did not violate the Constitution by providing Noren the retirement incentive to which she was apparently statutorily entitled (Appeal of Deitz, 35 Ed Dept Rep 261, Decision No. 13,535).

In addition, I find that petitioners’ challenge to respondents’ decision to administratively reassign Fusco is moot. It is well settled that the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Brown, 39 Ed Dept Rep 341, Decision No. 14,254). As noted by respondents in their supplemental affirmation, after this appeal was commenced, respondent board preferred charges against Fusco and placed her on administrative leave with pay pursuant to Education Law "3020-a. This action renders moot petitioners’ challenge to respondents’ decision to administratively reassign Fusco pending investigation.

Nor have petitioners established grounds for removing any of respondent board members. A member of the board of education may be removed from office pursuant to Education Law "306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education (Application of Bushman, 37 Ed Dept Rep 576, Decision No. 13,931). To be considered willful, respondent’s actions must have been intentional and with a wrongful purpose (id.).

Respondents acknowledge that Fusco received the Principal of the Year Award in New York State in 1997 and the National Distinguished Principal Award in 1998 but nevertheless contend that her removal was warranted because of her "failure to safeguard the health and safety of her students." Although it is apparent from the breadth and length of the disciplinary charges, as well as the remoteness of some of the allegations, that respondents have pursued Fusco’s removal with considerable zeal, there is insufficient evidence that any board member willfully violated or neglected a legal duty in approving Fusco’s reassignment. Petitioners bear the burden of establishing the facts upon which they seek relief and the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Kozak, supra). Although petitioners sharply dispute respondent Reilly’s description of many of the incidents that form the basis for the disciplinary charges against Fusco, they do not cite any statutory or regulatory provision that respondents allegedly violated in approving Fusco’s reassignment. Even if there were evidence of a violation of law, petitioners have not established that respondents acted willfully. Petitioners’ proof regarding the board’s treatment of Noren is similarly insufficient to establish grounds for removal. Education Law "1709(33) vests a board of education with broad authority to manage the educational affairs of the district. Inherent in this authority is the power to abolish administrative positions and alter the assignment of an administrator (Matter of Young v. Board of Educ., 35 NY2d 31; Appeal of Garwood, 35 Ed Dept Rep 297, Decision No. 13,547; Appeal of Riendeau, 23 id. 487, Decision No. 11,290). The actions complained of clearly fall within the scope of the board’s authority.

In light of this disposition, I need not address the parties’ remaining contentions.