Decision No. 18,535
Appeal of BRENT HARRINGTON from action of the Board of Education of the Brewster Central School District regarding denial of tenure and application for the removal of Laurie Bandlow as superintendent and Jamie Callanan and Cynthia Fox as members of the board of education.
Decision No. 18,535
(December 17, 2024)
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondents, Steven L. Banks, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Brewster Central School District (“respondent” or “board”) to deny him tenure. He also seeks the removal of the superintendent and board members Jamie Callanan and Cynthia Fox (“individual respondents”) in connection therewith. The appeal must be dismissed and the application denied.
Respondent appointed petitioner as its director of human resources as of July 1, 2019. This position was subject to a four-year probationary period that ended on June 30, 2023.[1]
On February 8, 2023, the superintendent informed petitioner that “there was insufficient support among [the board] for his appointment with tenure.” Petitioner submitted a letter of resignation on February 15, 2023, which was effective June 30, 2023. Respondent accepted petitioner’s resignation at its February 28, 2023 meeting. This appeal ensued.
Petitioner asserts that the decision to deny him tenure was arbitrary and capricious. Petitioner claims that the superintendent led him to believe that he would be awarded tenure and failed to provide him with a written statement of reasons pursuant to Education Law § 3031. Petitioner also complains that he was improperly placed on administrative leave for two weeks in June 2023. Petitioner requests “retroactive approval and confirmation of his tenure[d]” status, a public statement from the superintendent regarding the district’s “negligence,” and compensatory damages.
Respondent argues that the appeal must be dismissed, and the application denied, as untimely. Respondent further contends that petitioner’s application to remove school officers must be denied on procedural grounds. On the merits, respondent contends that petitioner was not entitled to a written statement of reasons given his voluntarily resignation over four months prior to the end of his probationary term. Finally, respondent argues that the Commissioner lacks the authority to order an apology or monetary damages.
Petitioner’s appeal and removal application are untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The 30-day limitation period also applies to a removal application made pursuant to Education Law § 306 (8 NYCRR 277.1; Application of P.P., 57 Ed Dept Rep, Decision No. 17,321; Application of Kelty, 48 id. 476, Decision No. 15,921). Petitioner commenced this appeal and application by service of the petition on November 2, 2023, over eight months after he resigned. “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Appeal of M.W., 64 Ed Dept Rep, Decision No. 18,477; Appeal of J.B., 62 id., Decision No. 18,245). Petitioner had actual notice of his resignation, and the board’s acceptance thereof, in February 2023. Additionally, petitioner was aware of his placement on administrative leave as of June 20, 2023. His protestations concerning the “manipulation ... and duplicity” of the superintendent and his interest in becoming “settled in another school district” are unrelated to his knowledge of the facts underlying his claims. As such, I decline to excuse petitioner’s lengthy delay in commencing this appeal and application (Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051).
Even if the appeal were not dismissed as untimely, it would be dismissed on the merits. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioner has not established that the superintendent acted improperly or coerced him into resigning. As indicated above, the superintendent informed petitioner that it appeared unlikely that the board would grant him tenure. Knowing this, petitioner could either resign or await the board’s vote—and elected the former. He was not entitled to written notice that the board intended to deny him tenure because, at the time of his resignation, no such decision had been reached (see Education Law § 3031). The fact that the superintendent may have recommended petitioner for tenure is irrelevant as the authority for making the ultimate decision on tenure rested with the board. “It [is] well established that ... a board of education [can], in the face of a positive recommendation by its superintendent of schools, deny tenure to a probationary teacher” (Anderson v Bd. of Ed. of City of Yonkers, 46 AD2d 360, 363 [2d Dept 1974], affd sub nom. 38 NY2d 897 [1976] [citing cases]; see also Appeal of Christiano, 50 Ed Dept Rep, Decision No. 16,217 [upholding board’s rejection of superintendent’s recommendation to grant tenure]). Thus, the superintendent committed no legal error by sharing, in her estimation, the likely outcome of the board’s vote.
Respondent also requests certification that the individual respondents acted in good faith pursuant to Education Law § 3811 (1). Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1). The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240, Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594). Since the application has been denied on procedural grounds,[2] I hereby certify for the purpose of Education Law § 3811 (1) that the individual respondents are entitled to the requested certification (Application of Petrie, 63 Ed Dept Rep, Decision No. 18,339; Appeal and Application of Petrocelli, 62 id., Decision No. 18,223).
To the extent they are not addressed herein, petitioner’s remaining arguments—including his requests for an apology and monetary damages—are without merit (Appeal of M.E., 62 Ed Dept Rep, Decision No. 18,248; Appeal of Eckles, 62 id., Decision No. 18,149).
THE APPEAL IS DISMISSED.
THE APPLICATION IS DENIED.
END OF FILE
[1] I have assumed that petitioner’s position involved “the function of administration of teaching, i.e., supervision and direction of supervisors, principals and all other members of the teaching and supervisory staffs” such that it fell within the unclassified service (Appeal of Destino, 52 Ed Dept Rep, Decision No. 16,461).
[2] The applications are also subject to denial because the superintendent and board members were not identified in the caption of the appeal or personally served with a copy of the petition (8 NYCRR 277.1 [b]; Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of Hadden, 57 id., Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).