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Decision No. 16,266

Appeal of ADAM FINE and MARIA MONDINI, from action of the Board of Education of the Southampton Union Free School District and Dr. J. Richard Boyes, as superintendent, regarding termination of services.

Decision No. 16,266

(July 22, 2011)

Brad A. Stuhler, Esq., attorney for petitioners

Law Offices of Thomas M. Volz, PLLC, attorneys for respondents, Thomas M. Volz, Esq., of counsel

KING, JR., Commissioner.--Petitioners challenge various actions of the Board of Education of the Southampton Union Free School District ("respondent board” or “board”) and Superintendent J. Richard Boyes (“superintendent”) (collectively “respondents”) terminating their probationary appointments.  The appeal must be dismissed.

Petitioner Adam Fine (“Fine”) was appointed as high school principal on July 15, 2008.  Petitioner Maria Mondini (“Mondini”) was appointed as assistant principal on July 17, 2008.  On May 16, 2010, the superintendent sent an email to petitioners, notifying them of his decision to reassign them to home duties, with pay.  On May 17, 2010, petitioners submitted written resignations to the superintendent, with an effective date of June 30, 2010.  On May 18, 2010, Fine and Mondini were appointed by the Board of Education of the East Hampton Central School District to serve as principal and assistant principal, respectively, effective July 1, 2010.  By letter dated May 19, 2010, the superintendent notified petitioners of his intent to recommend that the board terminate their probationary appointments at its June 17, 2010 meeting.  At the June 17, 2010 meeting, respondent board terminated petitioners’ probationary appointments, effective July 17, 2010.  This appeal ensued.

Petitioners contend that respondents cannot disregard their letters of resignation and instead, terminate their probationary appointments.  Petitioners also allege that respondents’ termination of their employment under these circumstances contravenes Education Law and public policy.  Specifically, petitioners allege that respondents terminated them in bad faith, in retaliation for accepting employment in another district.  Petitioners ask that I annul the board’s decision terminating their probationary appointments and order that petitioners’ employment records be corrected to reflect their resignations.  Petitioners seek attorney fees and back pay.  As a procedural matter, petitioners object to respondents’ submission of additional affidavits with their memorandum of law.

Respondents maintain that the board was not prohibited by petitioners’ letters of resignation from terminating their probationary appointments.  Respondents also contend that petitioners’ services were terminated based on poor performance, that the decision to do so was not made in bad faith and that petitioners failed to establish otherwise.   

At the outset, I must address the procedural matter.  Petitioners object to respondents’ submission of two additional affidavits and exhibits with their memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, I have not considered the additional affidavits and exhibits submitted with respondents’ memorandum of law.

With respect to the merits of this appeal, section 3019-a of the Education Law provides as follows:

A teacher who desires to terminate his services to a school district at any time, shall file a written notice thereof with the school authorities of such school district or with the board of cooperative educational services or county vocational education and extension board at least thirty days prior to the date of such termination of services.  School authorities or such boards which desire to terminate the services of a teacher during the probationary period shall give a written notice thereof to such teacher at least thirty days prior to the effective date of such termination of services.

Here, on May 17, 2010, petitioners provided respondent board with written notice of their intent to resign, effective June 30, 2010.  Respondents allege that, instead, on June 17, 2010, it decided to terminate petitioners’ services due to their poor performance on their last days of employment with the district. 

In Folta v Sobol (210 AD2d 857), the Appellate Division, Third Department, permitted a school board to disregard a resignation and terminate a tenured teacher.  In Folta, a hearing pursuant to Education Law §3020-a was conducted but, immediately prior to the hearing panel rendering a decision, the teacher resigned.  The issue on appeal was whether petitioner’s resignation precluded the hearing panel and board from proceeding with the hearing and ultimately terminating the teacher.  The Third Department acknowledged that the statute provided protection to tenured teachers and also served as a means of assessing a teacher’s fitness to carry out his or her professional responsibilities.  The court held:

In view of this dual purpose and the public’s acute interest in maintaining a corps of qualified teachers, we perceive no cogent reason, in the absence of an irrevocable resignation or voluntary settlement, to compel a school board to terminate an Education Law §3020-a hearing upon the resignation of the teacher who is the subject thereof (see, Matter of Rubtchinsky v Moriah Cent. School Dist., 82 AD2d 960, 961). Folta v. Sobol, 210 AD2d 857, 858. 

The same reasoning applies here.  Petitioners’ resignations were not irrevocable (the board had not accepted petitioners’ resignations nor had the effective date occurred) and there was no settlement.  Prior to June 30, 2010 – their respective effective dates – petitioners could have rescinded their resignations at any time.  In light of the foregoing, I find that respondents were within their authority to act on June 17, 2010 and terminate petitioners’ probationary appointments.

Contrary to petitioners’ assertions, Appeal of Cammiso (19 Ed Dept Rep 34, Decision No. 10,014) and Appeal of Totolis and Richard (36 id. 476, Decision No. 13,779) do not require a contrary result.  Those decisions held that a board may not change the effective date stated in a resignation notice, stating:

Unless a statute otherwise specifies, a resignation need not be accepted inorder to become effective and, provided all statutory requirements are met, takes effect on the date specified therein (citations omitted)(emphasis added).

Here, the board acted on June 17, 2010 to terminate petitioners’ probationary appointments prior to the June 30, 2010 effective date of their resignations stated in the May 17, 2010 notices to the board.  Accordingly, I find the board’s actions were within its authority.

Petitioners also claim that respondents had no rational basis for terminating their services and therefore acted in bad faith.

A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (Education Law §3012[1][b]; Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of McBeth, 43 id. 52, Decision No. 14,913).

To support their claim that respondents had no rational basis for their actions, petitioners submit performance reports and letters of accolades and commendations for their service in the district.  However, the record also indicates that, in their final days of employment with the district, petitioners’ conduct raised serious concerns about their professionalism and judgment, particularly with respect to their:  (1) decision to leave a building of students and staff without adequate administrative coverage during an AP examination, and (2) failure to follow proper protocol for personal leave and use of district equipment.  Although petitioners disagree with respondents’ decision to terminate their services, they have not established that respondents did so for a constitutionally impermissible reason or in violation of a statutory proscription.  Thus, petitioners failed to meet their burden of proof.

Finally, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875). 

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