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Decision No. 14,494

Appeal of FRAN HOHENBERGER, et al., from action of Dr. Joseph Laria, Superintendent of Schools of the Connetquot Central School District regarding expenditure of district funds.

Decision No. 14,494

(November 30, 2000)

Guercio & Guercio, Esqs., attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the expenditure of public funds by the Connetquot Central School District ("district") at the direction of its Superintendent, Joseph Laria. The appeal must be dismissed.

On June 30, 1998, the collective bargaining agreement between the district and its clerical staff, represented by the Connetquot Clerical Association ("C.C.A."), expired. Negotiations for a new collective bargaining agreement were underway when respondent Laria became superintendent effective July 1, 1999, and those negotiations continued into June 2000. It appears that by June 19, 2000, the district and C.C.A. had reached an agreement in principle, the terms of which were well understood by members of the board of education, and which was reduced to a written draft. A copy of that draft was forwarded to board members and newly-elected board members prior to the board’s business meeting of June 27, 2000.

While the proposed agreement was included on the agenda for consideration by the board of education during an executive session conducted as part of the board’s July 27 meeting, it was apparently not the subject of any meaningful discussion. According to respondent’s affidavit and the affidavits of four of the five current board members, respondent Laria advised those present that he intended to sign the agreement with C.C.A. the following day. The new agreement was in fact signed by both respondent Laria and the president of C.C.A. on June 28, 2000. The agreement provides that the previous agreement expiring on June 30, 1998, remains in full force and effect, with substantive amendments with respect to term, salary, longevity, health insurance, and other matters. The agreement was for the term July 1, 1998, through June 30, 2002, and provided: "Retroactive salary and longevity payments shall be made on or before the first payroll in August."

Clerical employees were paid their salary increases beginning with the payroll period covering June 23, 2000, to July 6, 2000. During that pay period, the board held its annual organizational meeting on July 5, but took no action with respect to the new agreement. The board ratified the agreement at its meeting held on July 25, and, on August 29, again ratified the new agreement. The minutes of the August 29 meeting state that the board ratified the agreement "retroactive to July 1, 2000."

Petitioners argue that respondent Laria’s payment of salary increases to the district’s clerical employees prior to the board’s ratification of the new agreement amounts to a violation of the New York State Constitution, Article VIII, Section 1, because it is a gift or loan of money or property. Petitioners request that I provide "appropriate penalties" for respondent, admonish him, place a letter of reprimand in his personnel file, suspend or revoke his professional credentials, and direct him to reimburse the district for any loss of interest on funds that were expended prior to ratification of the agreement.

Respondent generally denies petitioners’ allegations, and presents a number of affirmative defenses, including the board of education’s ultimate ratification of the agreement, untimeliness, and an argument that respondent had the authority under Article 14 of the Civil Service Law "201(12) to enter into a binding agreement on behalf of the district.

The appeal must be dismissed because the relief sought by petitioners is not within my authority as Commissioner of Education. Under Education Law "306, I may remove a superintendent for wilful misconduct, but I have no authority to impose other penalties, including admonition or reprimand. It is also clear that I may not revoke a teacher’s or administrator’s certificate in an appeal pursuant to Education Law "310 (Appeal of Rossi, 31 Ed Dept Rep 367, Decision No. 12,668); nor do I have authority to direct the payment of interest (Matter of Middleton, 16 Ed Dept Rep 368, Decision No. 9,434).

Even if I were not dismissing for lack of authority, I would dismiss this matter on the merits. Petitioners’ claim is that no valid collective bargaining agreement existed until July 25, 2000, when the board of education acted to ratify the same. Under this reasoning, therefore, any salary increases paid to the clerical employees prior to that date were unauthorized.

Even assuming that respondent Laria had no authority to enter into the agreement on June 28, 2000, or to make payments under the agreement beginning in early July, the board of education had the power to ratify his actions, which it did on July 25, 2000, and again on August 28, 2000, specifically making their ratification retroactive to July 1. As stated in 14A NY Jur 2nd, Business Relationships "659: "The ratification of an act done or a contract entered into by a previously unauthorized officer or agent, unless rights of third persons have intervened, is equivalent to a prior authority and relates back to and supplies the authority to do such an act or to make such a contract." Seealso, 57 NY Jur 2nd, Estoppel, Ratification and Waiver ""87, 88; Town of Moriah v. Cole-Layer-Trumble Company, 200 AD2d 879, 881; Hoke v. Shanker, 108 AD2nd 1065, 1066; Appeal of Leman and Sluys, 39 Ed Dept Rep 407, Decision No. 14,274; Appeal of Andela, 38 id. 388, Decision No. 14,062.

Although I dismiss the appeal, I remind the parties that a superintendent should always use caution when entering into contracts or taking related actions prior to formal action by the board of education (seee.g., Appeal of Leman and Sluys, supra, at pp. 412-413).

In view of this disposition, I will not discuss the parties’ other contentions, which I find without merit.