Appeal of TRACY FORD from actions of the Board of Education of the City School District of the City of Troy, Brian Howard, Interim Superintendent, Joseph Mariano, Jared Heiner, Brian Dunn and Natalege Turner relating to his termination.

Decision No. 16,443

(December 28, 2012)

ESSAA Counsel, attorneys for petitioner, Michael A. Starvaggi, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent City School District of the City of Troy and Interim Superintendent Brian Howard, Kathy A. Ahearn, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges various actions of the Board of Education of the City School District of the City of Troy (“board”) and interim superintendent Brian Howard (collectively referred to as “respondents”), relating to his termination.  The appeal must be sustained in part.

Petitioner is certified as a School Administrator and Supervisor and School District Leader.  On August 15, 2007, respondent board approved the probationary appointment of petitioner in the K-12 administrative tenure area.  By letter dated August 16, 2007, the assistant superintendent confirmed petitioner’s probationary appointment from September 17, 2007 and ending September 18, 2010 to the position of the Elementary Principal of School 12 in the K-12 Administrative tenure area.  By letter dated June 17, 2010, petitioner was notified that he was granted tenure in the tenure area of elementary principal, effective September 1, 2010.  By letter dated May 20, 2011, petitioner was notified that his position was abolished and that he was the least senior employee in his tenure area and would be terminated effective June 30, 2011.  This appeal ensued.  At a board meeting held on September 7, 2011, the board adopted a resolution rescinding its action to terminate petitioner, clarifying his tenure area as Administrator K-12 and reassigning him to School 16, effective August 26, 2011.

Petitioner contends that he was improperly tenured in the elementary principal tenure area instead of the K-12 administrator tenure area.  As a result, he claims that he was improperly terminated because he was not the least senior administrator in the K-12 administrative tenure area or, alternatively, that he was entitled to fill a vacant position in the K-12 administrative tenure area when his position was abolished.  Petitioner requests that I declare the board’s actions excessing him as null and void, and restore him to his full salary in an administrative position within the district, with full seniority rights, benefits and pay retroactive to June 30, 2011.

Respondents contend that petitioner failed to meet his burden of demonstrating a clear legal right to the relief requested and that the petition must be dismissed as moot and untimely.

Respondents argue that the appeal must be dismissed as moot because the September 7, 2011 board resolution rescinded its action terminating petitioner’s employment and petitioner has been reinstated to a principal position in the K-12 administrative tenure area. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  To the extent that petitioner challenges his termination in June 2011 or requests reinstatement to a position in the K-12 administrative tenure area, these claims are moot.

However, petitioner’s request for relief also includes seniority credit, benefits and pay retroactive to June 30, 2011.  In his reply, petitioner maintains that he has not been paid and/or received benefits and/or accrued seniority credit from June 30, 2011 through August 26, 2011.  Consequently, respondent’s board resolution did not, itself, render these claims moot.

The September 7, 2011 board resolution provides, in pertinent part, as follows:

BE IT RESOLVED, that the Board of Education of the Enlarged City School District of Troy hereby rescinds its action terminating Tracy Ford from employment in the District, clarifies his tenure area as Administrator K-12 and re-assigns him to School 16, effective August 26, 2011 ....

The board resolution clearly rescinded the board’s action to terminate petitioner in June 2011.   The term "rescind" is defined, in pertinent part, in Webster's Third New International Dictionary of the English Language(Unabridged), G.&.C. Merriam Company, 1981, as follows:

Rescind. 3. to make void (as an act) by action of the enacting authority or a superior authority : repeal

Since petitioner’s termination was voided and repealed by the board, petitioner continued to be employed as an elementary principal in the district from June 30, 2011 until he was reassigned to School 16 on August 26, 2011.  Therefore, he is entitled to receive salary, benefits and any seniority credits accrued during this time period.

With respect to petitioner’s claim regarding salary, benefits and seniority credits, I reject respondents’ claim that the appeal is untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  To the extent petitioner seeks back-pay, benefits and seniority credit from June 30 through August 26, 2011, his claims are timely because the petition was served on July 27, 2011.  Under these circumstances, I decline to dismiss this claim as untimely, and therefore will order respondent to reinstate petitioner with back pay, benefits and seniority credit retroactive to June 30, 2011.

In light of the foregoing disposition, I need not address petitioner’s remaining contentions. 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the action of respondent Board of Education of the City School District of the City of Troy in terminating petitioner's services effective June 30, 2011, be and the same hereby is annulled consistent with their board resolution; and

IT IS FURTHER ORDERED that respondent Board of Education of the City School District of the City of Troy reinstate petitioner to the position to which he is entitled in accordance with this decision, and provide him with back pay and benefits and seniority credit from June 30, 2011 through August 26, 2011, less any compensation he may have earned in the interim.    

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