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Decision No. 15,400

Appeal of HALINA BOZYK from action of the Board of Education of the Nanuet Union Free School District regarding termination of a probationary appointment.

Decision No. 15,400

(April 21, 2006)

Joel Field, Esq., attorney for petitioner

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for respondent, Mario L. Spagnuolo, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Nanuet Union Free School District ("respondent") to terminate her probationary appointment as a teacher in the special subject tenure area of English as a second language ("ESL"). The appeal must be dismissed.

The petition recites that petitioner began her employment as a part-time teacher of ESL in the fall of 2002, first as a .6, then as a .8 part-time teacher, beginning in the fall of 2003. During the 2003-2004 school year, she became full-time, and was given a probationary appointment effective January 7, 2004, and ending January 7, 2007.

By letter dated May 3, 2005, respondent's superintendent informed petitioner that he would recommend that respondent discontinue her probationary appointment at its June 7, 2005, meeting, effective at the end of the 2004-2005 school year. By letter dated May 5, petitioner 's attorney requested the superintendent's reasons for his negative recommendation. The superintendent responded on May 26 advising that he would make his recommendation to respondent at its July 7, 2005, meeting, and on June 15 he provided reasons for his negative recommendation in writing. (The record does not indicate what, if anything, occurred at the June 7 board meeting.)

It appears that respondent actually met on July 5, rather than July 7, 2005, and that petitioner's attorney was given notice of the change of date beforehand. Before the meeting, on June 29, petitioner responded to the superintendent's reasons for her termination, and her responses were distributed to board members prior to July 5. At the July 5 meeting, respondent approved the superintendent' s recommendation to terminate petitioner.

By letter dated July 29, the superintendent informed petitioner of respondent's action on July 5. Because of the error in his earlier May 26 letter, in which he gave the incorrect date of the July board meeting, the superintendent advised that his negative recommendation would again go before respondent at its August 30 meeting. At that meeting, respondent again terminated petitioner's probationary appointment, and by letter dated September 8, the superintendent advised petitioner of her termination.

It appears from petitioner's reply affidavit that she contends that she should not have been terminated because she allegedly was performing well as a teacher, and she disagrees with the superintendent's decision to recommend her termination. Respondent contends that the superintendent's negative recommendation was a valid exercise of judgment reserved to the superintendent by law, and that the petition is legally defective because it alleges no wrongful conduct on the part of respondent, and makes no claim for relief.

The appeal must be dismissed. A petition must contain "a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled" (8 NYCRR �275.10). Such statement must be sufficiently clear to advise a respondent of the nature of petitioner's claim and of the specific act or acts complained of (id.). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Eckert, 40 id. 433, Decision No. 14,520). Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed ( seeAppeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Stephen and Roseanne W., 39 id. 808, Decision No. 14,388).

The petition in this matter merely recites the chronology of petitioner's employment with the district. It does not allege that either respondent or the superintendent violated any law or regulation, and it does not contain any demand for relief. By failing to include these required elements in the petition, respondent was deprived of an opportunity to respond to them. I find that the petition does not comply with Commissioner's regulation �275.10, which requires a petition to contain "a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and . . . a demand for the relief to which the petitioner deems himself entitled." The petition fails in both respects (Appeal of Cimino, 44 Ed Dept Rep 405, Decision No. 15,212).

Even if I were not dismissing on procedural grounds, I would dismiss the appeal on the merits. As stated in Appeal of Scott (44 Ed Dept Rep 339, Decision No. 15,192; Supreme Court, Albany County, Special Term; Stein, J.; Judgment granted dismissing petition to review; January 20, 2006; n.o.r.):

Generally, a board of education has the unfettered right to terminate a probationary employee 's employment for any reason unless the employee establishes that he was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (James v. Bd. of Educ., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Appeal of Jackolski, 43 Ed Dept Rep 418, Decision No. 15,038).

Here, petitioner has failed to establish or even allege that respondent violated a statute or regulation, or terminated her for a constitutionally impermissible purpose. As indicated in Matter of Sachs (71 AD2d 898, affd 50 NY2d 830), the burden is on petitioner to make an "evidentiary showing" of a statutory violation or a constitutionally impermissible purpose, not mere accusations or speculation. I find that petitioner has failed to make any showing of such proof.

In view of this disposition, it is unnecessary to consider the parties' other contentions, which I find without merit.