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Decision No. 15,680

Appeal of BARBARA WINFREE from action of the Board of Education of the Hempstead Union Free School District and Nathaniel Clay, Superintendent, regarding employment termination.


Decision No. 15,680

(October 25, 2007)


Elissa Hutner, Esq., attorney for petitioner


Lewis Brisbois Bisgaard & Smith LLP, attorneys for respondents, Peter J. Biging, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hempstead Union Free School District (“respondent board” or “board”) to terminate her employment.  The appeal must be dismissed.

On March 18, 2005, the board resolved to approve the recommendation of then-Acting Superintendent Susan Johnson (“Johnson”) to appoint petitioner to a three-year probationary period as Assistant Superintendent for Business and Operations beginning April 18, 2005 through April 17, 2008.  On May 31, 2005, the board resolved to ratify Johnson’s recommendation to appoint petitioner and to authorize “its President (in accordance with Board resolution,) to execute a wage and benefit agreement between the District and [petitioner] including remuneration, upon the direction of labor attorney.”

On July 12, 2005, the board terminated Johnson’s employment (seeAppeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443), resolved to reappoint Nathaniel Clay (“Clay”) as superintendent for one year and authorized its president to execute on its behalf an approved memorandum of agreement and employment agreement with Clay.  The board also appointed Francis K. Stubbolo (“Stubbolo”) as a per diem consultant.

Within the week, Clay relocated petitioner’s office to another building and installed Stubbolo in her former office.  By memoranda dated July 15 and 22, 2005, Clay requested that petitioner provide reports on nine and ten budget-related items, respectively.  He also chastised petitioner for not being available for the board meeting on July 15.  Petitioner responded to the July 22 memorandum.  By memorandum dated August 17, 2005, Clay described seven areas in which he detailed major deficiencies in petitioner’s performance and offered her an opportunity to respond by August 18.  By memorandum dated August 18, 2005, petitioner replied that she intended to consult with an attorney and expected to reply before Labor Day.

By letter dated August 19, 2005, Clay notified petitioner that he intended to recommend to the board at its September 20, 2005 meeting that her services be terminated effective October 20, 2005.  He also advised petitioner that she could request a written statement giving the reasons for the recommendation at least 21 days prior to the meeting.  By letter dated September 1, 2005, petitioner’s counsel requested a written statement and an opportunity to appear before the board.  The letter also asserted, among other things, that under the Education Law and petitioner’s employment contract, petitioner could only be dismissed upon the presentation of written charges and a due process hearing on those charges.

By letter dated September 7, 2005, Clay denied petitioner’s requests, stating that the reasons for his recommendation had been previously set forth in the August 17, 2005 memorandum.

By letter dated September 27, 2005 petitioner received notice that the board had approved Clay’s recommendation to terminate her probationary appointment effective October 20, 2005.  By letter dated October 14, 2005, petitioner’s counsel demanded that the board comply with petitioner’s employment contract regarding the presentation of written charges and a due process hearing on those charges.  By letter dated October 31, 2005, respondent’s counsel asserted that petitioner’s “contract” was not enforceable against the board and that her employment was properly terminated in accordance with the due process requirements of Education Law §§3019-a and 3031 effective October 20, 2005.  This appeal ensued.

Petitioner alleges that Clay never assessed her job performance and instead decided to replace her before he was reinstated.  She asserts that the board’s determination was arbitrary and capricious and breached her employment contract because it failed to provide her with notice of the charges and a due process hearing prior to termination.  She contends that the board also violated the Education Law and her property and due process rights under the Constitution.  Petitioner seeks reinstatement with full back pay and benefits, and continued employment for the full term of her employment contract or until she is properly terminated for cause under that contract.

Respondents assert that the petition must be dismissed as untimely, for failure to state a claim upon which relief may be granted and failure to join necessary parties.  They contend that petitioner did not have a valid employment agreement and thus had no property right in her employment.  Instead, respondents maintain that petitioner was a probationary employee whose services were terminable at will and that she was afforded all appropriate notice to which she was entitled.  Respondents also assert that petitioner’s claims are barred by the equitable doctrines of laches, unclean hands and inparidelicto.  Finally, Clay requests a certificate of good faith pursuant to Education Law §3811.

Initially, I note that I have accepted petitioner’s late reply and memorandum of law, and respondents’ rebuttal affidavit, pursuant to §276.5 of the Commissioner’s Regulations.  However, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed in part for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Petitioner’s affidavit of service indicates that two copies of the petition were served upon the district clerk, which is sufficient for service upon the district, but does not constitute service upon the superintendent.  Accordingly, the appeal is dismissed as to Clay.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Petitioner did not commence this appeal until December 2, 2005, some six weeks after the effective date of her termination on October 20.

Petitioner, however, argues that the appeal is timely because on November 2, 2005, she received a letter from the board informing her that her employment contract was unenforceable and she served her petition 30 days later on December 2.  However, I find that the November 2 letter merely responded to what was in essence a request for reconsideration, which does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  Petitioner submits a copy of an employment agreement signed by the board’s vice-president and allegedly dated June 29, 2005.  Petitioner contends that she was terminated in violation of this agreement, specifically paragraph seven, which required notice of charges and a due process hearing on those charges.  While the parties agree that the board’s May 31, 2005 resolution authorized its president to execute a wage and benefit agreement and that the board’s vice-president signed the agreement, they disagree about the validity of that agreement.

Petitioner acknowledges that Education Law §1701 provides that “the board of education of each union free school district is hereby created a body corporate and it shall, at it first meeting and at each annual meeting thereafter, elect one of its members, president.  It may also, in its discretion, elect one of its members vice-president, who shall have the power to exercise the duties of the president in case of the absence or disability of the president.”  (This definition applies as well to a central school district pursuant to Education Law §1804).

Petitioner contends that the vice-president had authority to sign the contract on the board’s behalf.  The vice-president states that the board intended to direct, not simply authorize, the president to sign the agreement once the attorney had drafted it, without further review by the board, and that he considered it his fiduciary duty to sign the contract on the board’s behalf, especially since the president frequently refused to sign documents and checks submitted to him.

Petitioner, however, presents no evidence, and indeed there is none, that the board authorized anyone other than the president to execute any agreement on its behalf between petitioner and the district.  Petitioner likewise presents no evidence that the president was otherwise absent or disabled pursuant to §1701.  Unless official action has been taken by the board designating an individual member as the representative of the board for a particular purpose, that board member has no authority to act for the board (Appeal of Silano, 33 Ed Dept Rep 20, Decision No. 12,961).  In fact, the president avers that while an agreement was apparently drafted after the May 31 meeting, it was never shown to him, he never had an opportunity to review it, he never approved it and he never authorized anyone to sign it in his stead.  Another member of the board also avers that the board never authorized the vice-president to sign the contract.  Therefore, on the record before me, I find that the vice-president lacked the authority to enter into the contract.

Petitioner concedes in her reply that if her employment contract was not properly executed, respondents were entitled to fire her six months into the term of her three year contract, with or without cause.  To terminate petitioner as a probationary employee, respondent had only to comply with the notice and dismissal requirements of Education Law §§3012(1)(b) and 3031(a).

Education Law §3012(1)(b) provides that the services of a probationary administrator “may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education . . . .”  Education Law §3031(a) provides that when a recommendation is made that the services of an administrator employed on probation be discontinued, the individual shall be given notice of such recommendation and the date of the board meeting at which it is to be considered, at least 30 days prior to that board meeting.  The record reflects that the superintendent complied with this provision when he notified petitioner by letter dated August 19, 2005, of his intention to recommend to respondent at its September 20, 2005 meeting, 32 days later, that it terminate her probationary appointment effective October 20, 2005.  Section 3031(a) also permitted petitioner to request a written statement of reasons for the recommendation not later than 21 days prior to the meeting, which respondent must furnish within seven days.  The record reflects that petitioner did not request a written statement until September 1, 2005, to which respondent submitted a reply within six days on September 7, despite petitioner’s untimely request.  Accordingly, respondent complied with the statutory requirements of §§3012(1)(b) and 3031(a) and I find no basis upon which to invalidate petitioner’s dismissal.

One administrative matter remains.  Clay has requested that I grant him a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify him for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as superintendent.  It is appropriate to issue such certification unless it is established on the record that the requesting officer acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Zimmerman, et al., 42 id. 205, Decision No. 14,823).  On the evidence in the record before me, I will issue the requested certification for the limited purpose of §3811(1).

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