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Decision No. 15,809

Appeal of DANIEL T. CONNOR from action of the Board of Education of the Eastport-South Manor Central School District regarding a superintendent’s contract.

Decision No. 15,809

(August 6, 2008)

Girvin & Ferlazzo, P.C., attorneys for petitioner, Kristine Amodeo Lanchantin and Kathy Ann Wolverton, Esqs., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Raymond G. Keenan, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Eastport-South Manor Central School District (“respondent”) terminating his employment. The appeal must be dismissed.

In June 2007, the parties entered into a three-year employment contract (“the contract”).  The contract contains this provision:

Superintendent Residency

The Superintendent must permanently reside at his primary residence in Suffolk County.  In the event that the Superintendent does not reside in Suffolk County at any time, the entire contract will be deemed null and void. 

After entering into the contract, petitioner entered into a one-year lease for an apartment within Suffolk County.  His family remained upstate.  He lived in Suffolk County during the week, but traveled most weekends to upstate New York to be with his family at his home in Saratoga County. 

By letter dated December 7, 2007, respondent notified petitioner that he had violated the contract by failing to establish Suffolk County as his permanent primary residence.  The letter further indicated that respondent intended to adopt a resolution at its meeting on December 12, 2007, declaring the contract null and void and terminating petitioner’s employment, effective immediately.  Petitioner was asked to provide respondent prior to the meeting with any information that would cause the Board to reconsider its decision.  Petitioner was suspended with pay pending the meeting and was directed to remain off school premises.

Petitioner’s counsel submitted a letter to respondent dated December 12, 2007 in support of petitioner’s claim that he had not violated the contract.

By letter dated December 13, 2007, respondent notified petitioner that, upon reconsideration of the information concerning petitioner’s residence, respondent affirmed its prior decision, deemed the contract null and void and terminated his employment immediately.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 10, 2008.

Petitioner contends that he established residency in Suffolk County in accordance with the terms of the contract and that respondent’s termination of his employment violated the contract, his right to due process and was arbitrary and capricious.  Petitioner asserts that respondent has the burden of proving by clear and convincing evidence that petitioner did not establish Suffolk County as his permanent, primary residence.     

Respondent maintains that petitioner failed to meet his burden of establishing a clear right to the requested relief and to set forth a claim upon which relief may be granted.  Respondent further maintains that the appeal should be dismissed because petitioner failed to join a necessary party.  Respondent contends that its action was lawful in all respects. 

Respondent objects to the reply affidavit submitted in support of petitioner’s verified reply, claiming that it contains misstatements and new material and further seeks permission to submit a sur-reply pursuant to §276.5 of the Commissioner’s regulations.  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 affidavit, I have not considered those portions that are not responsive to new material or affirmative defenses set forth in the answer. Consequently, I have not considered respondent’s sur-reply.

Respondent claims that petitioner failed to join Mark Nocero, the Acting Superintendent of Schools, as a necessary party in this appeal.  Petitioner disagrees and asserts that an acting superintendent is a temporary position with no rights to continuing employment and that the position of superintendent of schools remains vacant.   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).  Since a decision in favor of petitioner would clearly affect Mr. Nocero’s position as acting superintendent, he is a necessary party.  As such, petitioner was required to name him as a respondent and personally serve him with a copy of the petition and notice of petition (8 NYCRR §275.8; Appeal of Branch et. al., 41 Ed Dept Rep 334, Decision No. 14,704).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329). Education Law §1711(3) authorizes a board of education to enter into a contract with a superintendent for a period of not less than three and not more than five years, and upon such other terms as shall be mutually acceptable to the parties.  

The crux of this appeal is what the parties meant when they agreed that the superintendent must “permanently reside at his primary residence in Suffolk County.”  Where the writing is clear and unambiguous, a court will determine, as a matter of law, the meaning of the contract from the language employed without consulting extrinsic evidence (Parnes v. Parnes, 41 AD3d 934 [2007]).  The terms used in the residency section of the contract are not defined within the contract.  I therefore find that the language at issue is not clear and unambiguous and I will therefore consider extrinsic evidence to determine the parties’ intent. 

When construing contractual provisions, the appropriate standard in a §310 appeal is not whether a particular clause is susceptible of a different interpretation, but whether the school board's interpretation is unreasonable or otherwise arbitrary or capricious (seee.g.Appeal of Jericho Educational Administrators Association and Catuogno, 44 Ed Dept Rep 302, Decision No. 15,181; Appeal of Caruana, 41 id. 227, Decision No. 14,671; Appeal of Hernandez, 29 id. 508, Decision No. 12,367).

Applying this standard, I find that respondent’s interpretation -- that the provision was intended to ensure that the superintendent would live in Suffolk County full-time -- is reasonable.  At the time of the interview process, petitioner lived upstate with his family in Gloversville, New York.  It is clear from the record that respondent did not want to employ a “commuter superintendent” and had concerns given that petitioner lived upstate with his family.  Petitioner alleviated those concerns by indicating a willingness to relocate with his family to respondent’s district and respondent offered him the position.  However, prior to entering into the contract, petitioner sold his home in Gloversville and purchased a home in Saratoga County. Petitioner’s family circumstances changed and his family did not relocate with him to respondent’s district.  Instead, petitioner commuted most weekends to his home in Saratoga County.  Because petitioner essentially only lived in an apartment in Suffolk County during the traditional work week and then returned to his house and family in Saratoga County on most weekends, I find it was not arbitrary or capricious for the board to conclude that he did not satisfy the qualification of employment contained within the contract. Accordingly, I will not disturb respondent’s determination that the contract is null and void. 

With respect to petitioner’s alleged violations of due process, the contractual provision at issue did not require that any process would be due.  Instead, the parties agreed that failure to comply with the residency requirement would render the contract null and void.  Comprehensive due process provisions set forth in a different section of the contract are inapplicable as they pertain to the due process required when terminated for cause/misconduct.   Here, the contract was terminated for failure to comply with an employment qualification and not due to misconduct (seeMandelkern v. City of Buffalo, 64 AD2d 279 (4th Dept. 1978); O’Connor v. Board of Education of City School District of City of Niagara Falls, 48 AD3d 1254 [2008], leave to appeal denied, ___N.E.2d___).  Nevertheless, petitioner was given the opportunity to submit information regarding the contractual residency requirement and, through his attorney, chose to submit a letter to respondent.  Respondent considered the letter and determined that petitioner had not satisfied the residency requirement.  Therefore, although the contract did not require that petitioner be afforded due process regarding the residency clause, respondent did, in fact, provide petitioner with an opportunity to respond prior to making its final determination.